LEGAL PRACTICE BOARD and BARKER [2026] WASAT 74

[2026] WASAT 74 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION UNIFORM LAW (WA) CITATION : LEGAL PRACTICE BOARD and BARKER [2026] WASAT 74 MEMBER : JUDGE H JACKSON, DEPUTY PRESIDENT MR J O'SULLIVAN, SENIOR MEMBER MR R POVEY, MEMBER HEARD : 22 APRIL 2026 DELIVERED : 26 JUNE 2026 FILE NO/S : VR 34 of 2025 BETWEEN : LEGAL PRACTICE BOARD Applicant AND MICHAEL BARKER Respondent Catchwords: Professional regulation - Lawyers - Respondent non-practising lawyer - Respondent made allegations of serious impropriety against other practitioners, Family Court of Western Australia and Legal Practice Board - Findings that allegations were made without reasonable grounds - Findings that respondent ought to have known that there were no reasonable grounds for the allegations - Findings that conduct likely, to a material degree, to bring the profession into disrepute and to be prejudicial to, or diminish public confidence in, the administration of justice - Finding that respondent is not a fit and proper person - Findings of professional misconduct -- 1 of 63 -- [2026] WASAT 74 Page 2 Legislation: Criminal Code Act Compilation Act 1913 (WA), s 129, s 135, s 143 Defamation Act 2005 (WA), s 27(1), s 27(2)(b) Family Court Rules 2021 (WA), r 322 Legal Profession Uniform Law (WA) 2022, s 6(1), s 261, s 297(1)(a), s 297(1)(b), s 297(2), s 298(b) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA), r 5.1.2, r 21.4, r 43.1 State Administrative Tribunal Act 2004 (WA), s 32(1) Result: The respondent engaged in three counts of professional misconduct Category: B Representation: Counsel: Applicant : Mr SR Pack Respondent : No Appearance Solicitors: Applicant : Legal Practice Board Respondent : N/A Case(s) referred to in decision(s): Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Clyne v The NSW Bar Association [1960] HCA 40; 104 CLR 186 Council of the Law Society of ACT v Legal Practitioner LP 202012 (Occupational Discipline) [2024] ACAT 11 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 -- 2 of 63 -- [2026] WASAT 74 Page 3 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 In the matter of an application for admission by Ali [2026] QCA 100 Jensen v Legal Services Commissioner [2017] QCA 189 Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298 Kaji Australia Pty Ltd v Glover (No 5) [2020] NSWSC 1576 Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Legal Practice Board and Barker [2026] WASAT 22 Legal Profession Complaints Committee and Chang [2019] WASAT 67 Legal Services and Complaints Committee and Barry [2025] WASAT 34 Legal Services and Complaints Committee and Khosa [2023] WASAT 90; (2023) 112 SR (WA) 328 Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77; 110 SR (WA) 133 Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 Mr Lietzau (A Pseudonym) v Berry [No 3] [2026] WASCA 35 Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73 Victorian Legal Services Board v Mericka [2024] VSC 1 -- 3 of 63 -- [2026] WASAT 74 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Overview 1 The applicant (the Board) alleges that the respondent (Mr Barker) has engaged in three counts (Grounds) of professional misconduct. 2 In each case, the Board alleges that Mr Barker made allegations of serious impropriety for which there were no reasonable grounds and where he ought to have known there was no proper basis for them. Ground One concerns allegations against a fellow practitioner, Ground Two against the Family Court of Western Australia (FCWA) and Ground Three against the Board itself. 3 Mr Barker does not deny that he made each of the relevant allegations. Rather, in written material filed with the Tribunal (he did not participate in the hearing) he says, in effect, that each of the allegations are factually correct. 4 For the following reasons, we agree that Mr Barker made each of the allegations alleged by the Board. We also find that there were no reasonable grounds for any of the allegations made by him and that he ought to have known there was no proper basis for them. 5 We also agree with the Board that the conduct engaged in was such that it justifies a finding that Mr Barker is not a fit and proper person to engage in legal practice. 6 Accordingly, we find that Mr Barker has engaged in three counts of professional misconduct. Mr Barker Did Not Attend the Hearing 7 The hearing of this matter proceeded on 22 April 2026 in the absence of Mr Barker. 8 Before commencing the hearing, we satisfied ourselves that Mr Barker had been provided with sufficient notice of the hearing and had otherwise been given a reasonable opportunity to attend. 9 A brief history in that regard is set out in Legal Practice Board and Barker [2026] WASAT 22,1 in which Deputy President Jackson 1 Legal Practice Board and Barker [2026] WASAT 22, [4] - [8]. -- 4 of 63 -- [2026] WASAT 74 Page 5 gave reasons for his decision to dismiss an application by Mr Barker to vacate the hearing listed for 22 - 24 April 2026. 10 By his application to vacate the hearing, Mr Barker was necessarily aware of the 22 - 24 April 2026 hearing dates. 11 Further, the reasons dismissing the application to vacate the 22 - 24 April 2026 hearing dates conclude by saying that as the application to vacate is dismissed, the hearing 'will proceed as listed'. The Tribunal's records confirm that a notification attaching those reasons was sent on 18 March 2026 to Mr Barker's email address and was opened on 9 April 2026. 12 It is also the Tribunal's practice to advise parties of a forthcoming hearing by email about a week ahead of the listed hearing. That was done, with an email sent on 13 April 2026 to the same email address as that to which the reasons had been previously sent. 13 Prior to the matter being called for the commencement of the hearing, the Associate telephoned Mr Barker on both his mobile phone and 'land line' to enquire of his whereabouts, but both calls rang out unanswered. 14 After the matter was called to commence the hearing, another call was made to each number, with the same result, and Mr Barker was noted as not in attendance. 15 Given those circumstances, we were satisfied that Mr Barker had been given reasonable notice and that it was appropriate for the hearing to continue despite his non-attendance. 16 On 30 April 2026, Mr Barker emailed the Associate to the President of the Tribunal, copied to various members of the Board and Mr Pack, who appeared at the hearing for the Board. Amongst other things, he confirmed that he had 'decided that [he] did not need to turn up' to the hearing. 17 That is, by that email he confirmed that his non-attendance at the hearing was deliberate. Such an approach is, at best, discourteous and disrespectful. It might also reasonably be said to be improper. 2 2 Legal Services and Complaints Committee and Lourey [No 2] [2023] WASAT 77; 110 SR (WA) 133, [235] - [241]. -- 5 of 63 -- [2026] WASAT 74 Page 6 18 Unfortunately, conduct such as Mr Barker's is far from uncommon. 19 Having said all of that, such conduct is not the subject of the allegations to which our consideration is otherwise limited. The Relevant Legal Framework 20 The Board's allegations concern conduct which occurred between December 2022 and March 2025. 21 The provisions of the Legal Profession Uniform Law (WA) (Uniform Law) therefore apply. At all relevant times, s 297(1) of that Act has defined professional misconduct as follows: (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 22 The Board's allegations, as contained in Annexure A to its application, filed on 28 April 2025,3 are that Mr Barker 'engaged in professional misconduct within the meaning of section 297(1)(a) and/or (b)' of the Uniform Law …'. 23 At the hearing Mr Pack explained that s 297(1)(a) had been included as an alternative to s 297(1)(b) to cover circumstances which might have arisen if Mr Barker had defended his conduct in a particular manner. As that had not eventuated, Mr Pack quite properly accepted that s 297(1)(a) had no real application and limited the Board's case to s 297(1)(b). 24 Mr Pack also confirmed that the Board does not allege a breach of the common law test of professional misconduct, as explained in Kyle.4 3 Annexure A to application, filed 28 April 2025 (Annexure A). 4 Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, [61]. -- 6 of 63 -- [2026] WASAT 74 Page 7 25 The Board's allegations against Mr Barker are, as noted above, that he made serious allegations against a fellow practitioner, the FCWA and the Board, and that he did so without any reasonable grounds and in circumstances where he ought to have known there was no proper basis for the allegations. 26 Some of the allegations, particularly those against the practitioner and the FCWA, were made in the context of litigation in the FCWA. 27 The Board says that statements made in litigation 'will generally' be protected by absolute privilege and that it is an abuse of that privilege to make serious allegations without a proper foundation. 28 We agree. The absolute privilege that arises in litigation is long- standing but now has a statutory basis.5 Equally, the concomitant need for restraint in what is alleged in legal proceedings is also long- standing. 29 In Clyne,6 a unanimous bench of five High Court Justices described the freedom of speech that the absolute privilege provides as a matter demanded by public policy. However, their Honours went on to say: But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise, grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. 30 Sub-rule 21.4 of the Legal Profession Uniform Law Australian Solicitor's Conduct Rules (Conduct Rules) represents a modern formulation of the rule.7 It provides:8 A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that … available material by which the allegation could be supported provides a proper basis for it … 5 Defamation Act 2005 (WA), s 27(1) and s 27(2)(b). 6 Clyne v The NSW Bar Association [1960] HCA 40; 104 CLR 186, 200 - 201. 7 Kaji Australia Pty Ltd v Glover (No 5) [2020] NSWSC 1576, [87]. See, also, sub-rule 21.3 and rule 21 more generally - see paras [45] and [46] below. 8 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 21.4. -- 7 of 63 -- [2026] WASAT 74 Page 8 31 We note here that the rule provides that the practitioner must have a belief on 'reasonable grounds' that there is material which provides a proper basis for the allegation. 32 A statutory requirement of 'belief on reasonable grounds' requires both that the decision maker actually hold the belief and that there be facts sufficient to induce that state of mind.9 33 However, in the present case, each of the Board's Grounds allege that 'at no time did [Mr Barker] have any reasonable grounds for the allegations' and that he 'ought to have known there was no proper basis for the allegations'. 34 Those allegations do not go to Mr Barker's actual state of mind. Rather, they both impose objective standards. The Board's submissions confirmed that that is the intended construction of its Grounds.10 35 We note here that at the time of the alleged conduct, although his name appeared on the roll of practitioners, Mr Barker did not hold an Australian practising certificate. 36 As he was not a 'solicitor' for the purposes of the Conduct Rules, the Board does not allege that his conduct amounts to a breach of those rules such that it would amount to professional misconduct pursuant to s 298(b) of the Uniform Law.11 That sub-section provides that conduct which breaches the Conduct Rules 'is capable of constituting unsatisfactory professional conduct or professional misconduct'. 37 The Board does, however, refer to the Conduct Rules as 'indicative of the standards of conduct expected of persons on the roll of practitioners, and relevant to whether particular conduct would justify a finding that a person is not a fit and proper person'.12 38 In that regard, the Court of Appeal has recently said this in a case which has, unfortunately, many similarities to the present, albeit that the Court was not dealing with allegations of professional misconduct:13 9 George v Rockett [1990] HCA 26; (1990) 170 CLR 104, [8]. 10 Legal Practice Board's Outline of Submissions for Hearing on 22 - 24 April 2026 (Board's Outline), para 20. 11 Board's Outline, para 28. 12 Board's Outline, para 28. 13 Mr Lietzau (A Pseudonym) v Berry [No 3] [2026] WASCA 35, [32] - [35] per Thomson P. Quinlan CJ agreed at [37] as did Seaward JA at [57]. -- 8 of 63 -- [2026] WASAT 74 Page 9 [32] The appellant is an enrolled, if not certificated, legal practitioner. He is therefore required to adhere to the high standards of conduct expected by this court of all of its practitioners. [33] … [34] Further, the claims by the appellant that a judicial officer and practitioners should show cause as to why they should not be disciplined by this court represent a gross abuse of the legal process by the appellant. [35] I do not regard this conduct to be appropriate and it fell well short of the standards of conduct expected by this court of enrolled practitioners. 39 In any event, the relevant provisions of the Uniform Law provide that a person whose name appears on the roll of practitioners is liable to be subject to findings of professional misconduct, notwithstanding that they did not hold an Australian practising certificate at the time of the alleged conduct. 40 That is so because the definition of 'professional misconduct' in s 297 of the Uniform Law refers to the conduct of a 'lawyer' and, by s 261 and the definitions of 'Australian lawyer' and 'Australian legal practitioner' in s 6(1), the term 'lawyer' in s 297 includes a person admitted to the 'Australian legal profession' but who does not hold an Australian practising certificate. 41 The Board also alleges that Mr Barker's conduct the subject of each Ground was likely, to a material degree, to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute. 42 In that regard, the Board refers to r 5.1.2 of the Conduct Rules14 which provides that a solicitor must not engage in conduct, whether in the course of legal practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute. Again, the Board submits that the sub-rule is 'indicative of the standards of conduct expected of persons on the roll of practitioners, and relevant to whether particular conduct would justify a finding that a person is not a fit and proper person'.15 14 Board's Outline, para 27. 15 Board's Outline, para 28. -- 9 of 63 -- [2026] WASAT 74 Page 10 43 The scope of conduct that may be found likely to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the profession into disrepute will, necessarily, be broad.16 44 The authorities include cases that concern conduct of a similar nature to that alleged here. 45 In Griffin, the NSW Court of Appeal held that private communications between a solicitor-advocate and the judge who has previously heard a case in which the solicitor appeared may fall within such scope if the solicitor, in those private communications makes 'unsubstantiated allegations of bad faith and dishonesty' against that judge.17 46 The Board also alleges that Mr Barker's conduct justifies a finding that he is not a fit and proper person. 47 For the purpose of deciding whether Mr Barker is a 'fit and proper' person to engage in legal practice, we are entitled to have regard to those matters that would be considered relevant if he were an applicant for admission.18 48 In a very recent decision of the Queensland Court of Appeal, which refused admission to the profession, the Court said:19 [49] Trust is at the heart of the legal profession; which is why the highest standards of integrity are required of lawyers. As Spigelman CJ said, in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [20]: "There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the 16 See, for example, Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21. An appeal brought by the Council was dismissed - Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383. 17 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364, [101] - [113] esp [105], applied in Council of the Law Society of ACT v Legal Practitioner LP 202012 (Occupational Discipline) [2024] ACAT 11, [259] - [260] and [265]. 18 Uniform Law, s 297(2). 19 In the matter of an application for admission by Ali [2026] QCA 100. -- 10 of 63 -- [2026] WASAT 74 Page 11 trust by the judiciary and/or the public in the performance of professional obligations by professional people." [50] To quote again from the decision of Forbes J in Angeleska, at [19]: "The trust and confidence in a legal practitioner, whether relied on by the public or by a Court, relies partly on the honesty of the practitioner. But it is also reliant on an exercise of judgment and an insight into the effect and consequences of the manner in which the legal duties are undertaken. The phrase 'fit and proper' gives wide scope for matters of judgment. It is a holistic inquiry not simply looking at conduct or character, but involves three essential things: honesty, knowledge and ability.20 It is worth repeating the description as quoted by Dixon CJ, McTiernan and Webb JJ as to these three things essential to fitness for office: '… honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and the ability … that he may intend and execute his office, when need is, diligently, and not for impotency or poverty, neglect it.'21"22 49 The reasons of Dixon CJ, McTiernan and Webb JJ in Hughes & Vale Pty Ltd, cited immediately above, also includes the finding that it is the 'very purpose' of the phrase 'fit and proper' to give 'the widest scope for judgment'.23 50 Finally, as to onus and the standard of proof, we adopt the following passage from Chang:24 The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and 20 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127. 21 Ibid. 22 Underlining added. 23 Hughes & Vale Pty Ltd v New South Wales (No 2), 156 (Dixon CJ, McTiernan and Webb JJ). 24 Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang), [8]. Citation omitted. See, also, Legal Services and Complaints Committee and Barry [2025] WASAT 34, [35]. -- 11 of 63 -- [2026] WASAT 74 Page 12 potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. 51 Thus, when we express ourselves to be satisfied, or we make a finding, we do so to the Briginshaw standard.25 52 However, as to the onus of proof, the Board submits that, in circumstances where a practitioner has made an allegation of impropriety, as is alleged in this case, the material on which the practitioner was acting when they made the allegation is solely within the practitioner's knowledge.26 Accordingly, the Board submits, the practitioner bears a burden of establishing that they were acting on material which provided a proper basis for the allegation. 53 The Board relies for that submission on the decision of the Occupational Division of the NSW Civil and Administrative Tribunal in Potkonyak.27 In that case, the Tribunal proceeded on the basis that the practitioner bore the onus of demonstrating a proper basis for the allegation once the regulator has made out a prima facie case. 54 Despite that authority, we do not accept the submission. With respect, it appears to both extend the rule in Jones v Dunkel28 and, in doing so, reverses the onus of proof. 55 The Board put an alternative submission to the effect that the failure by Mr Barker to identify a proper basis for his allegation of impropriety, in the context of all of the other relevant facts and circumstances, supports an inference that there was, in fact, no proper basis for the allegation.29 That appears to accord with principle but, for reasons which we address below, it has not been necessary for us to apply the principle in this case. Basic Factual Background 56 What follows is taken from the Board's Statement of Facts and Contentions, forming part of Annexure A (Board's Statement of Facts and Contentions). Mr Barker took no issue with any of it in any of his written responses to that application. Moreover, what follows appears, to us, to be uncontentious. 25 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 26 Board's Outline, para 21. 27 Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 [18]. 28 Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298. 29 Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 [309]. -- 12 of 63 -- [2026] WASAT 74 Page 13 57 At all material times, Mr Barker was a party to proceedings in the FCWA against his ex-wife. 58 While Mr Barker appears to have represented himself in those proceedings for much of their duration, his ex-wife appears to have been legally represented by a solicitor whom we will call Ms L. 59 In or around April 2022, Ms L inspected and took notes of subpoenaed documents produced by 'Fiona Stanley Fremantle Hospitals Group', in circumstances where no order had been made permitting copies of those documents to be made. Ms L then informed or advised Mr Barker's ex-wife of the content of the subpoenaed documents and drafted an affidavit for his ex-wife to swear. The affidavit was sworn on 12 July 2022 and filed with the FCWA on 18 July 2022 (Ex-Wife's First Affidavit).30 60 Paragraph 49 of the Ex-Wife's First Affidavit referred to a procedure performed on Mr Barker at Fiona Stanley Hospital in January 2022 to address a heart condition. Paragraph 49 was in the following terms: In or about April 2022 I was informed by my lawyers, and I verily believe that they inspected the subpoenas issued in this matter. Fiona Stanley Hospital revealed that the medical advice was for the Applicant not to drive and yet he wanted to drive with the children to Karratha following that advice. The subpoena record further revealed that: 49.1 On 7 January 2022 'Mr Barker has driven from Karratha and slept in his car in hospital car park overnight and intends to drive home to Karratha on discharge tomorrow'; 49.2 On 8 January 2022, the Applicant 'discharge with strong pain medication including Oxycodone, Ondasetron'; and 49.3 Dr Duojie - 'Advised patient not to drive for at least 24 hours and explained the relevant risks. Pt stated that he will sleep in his car after discharge. Offered help by contacting social worker regarding arranging potential accommodation for him, however, this was declined by patient'. 49.4 I did not handover the children in Perth so that the applicant would drive with them to Karratha (1600km by road) based on safety concerns. 30 Applicant's Bundle of Documents filed 23 September 2025 (Applicant's Bundle), pages 225 - 226. -- 13 of 63 -- [2026] WASAT 74 Page 14 The Errors in Paragraph 49 of Ex-Wife's First Affidavit 61 There were errors contained within paragraph 49 of the Ex-Wife's First Affidavit. 62 Further, absent a careful reading, it may give the incorrect impression that the decision of Mr Barker's ex-wife not to hand over the children on 8 January 2022 was due to her fears for their safety arising from Mr Barker's prescription for strong painkillers upon his discharge and his refusal to take advice, given on 7 or 8 January 2022, not to drive. That could not have been the case given that she only became aware of these matters in April - three months later. 63 One of the errors is the numbering of paragraph 49.4. That sub- paragraph clearly does not reference material sourced from the subpoenaed material and it should not, therefore, have been drafted as a sub-para to paragraph 49. It should have been a new paragraph altogether - paragraph 50. 64 Other errors were identified in a further affidavit sworn much later - on 19 December 2024 - and filed with the FCWA on 23 December 2024, by Mr Barker's ex-wife (Ex-Wife's Second Affidavit). In that affidavit she acknowledged that paragraph 49 of her First Affidavit contained other errors. She relevantly deposed:31 105. I refer to paragraph 49 of my affidavit filed 12 July 2022 ("my affidavit"). I am informed by my lawyer, and I verily believe that on 3 December 2024 my lawyer reviewed documents produced in these proceedings by Fiona Stanley Hospital in 2022 and I say as follows: 105.1. matters deposed in paragraph 49. 2 of my affidavit were extracted from FSH Patient File/Discharge Plan Check List/ Medication Chart - dates 7/1/22 and 8/1/22. The medicines recorded "as required PRN medicines" start date 07.1.22 were as follows: 105.1.1 Paracetamol, indication "pain", dose and hourly frequency 1g 24h, max PRN dose /24h 4 g; 105.1.2 Oxycodone IR, indication "pain", dose and hourly frequency 2. 5 x 5 mg, max PRN dose/24h 20mg; and 31 Applicant's Bundle, pages 433 - 434. -- 14 of 63 -- [2026] WASAT 74 Page 15 105.1.3 Ondasetron indication N+V, dose and hourly frequency 4.8mg, max PRN dose/24h 32 mg" Prescriber signature ineligible [sic - illegible?]. 105.2. matters deposed in paragraph 49.3 of my affidavit were in reference to a previous event/medical notes at page 93, dated 9 August 2021, at 5.19pm, Duojie Tash [he 122602] Cardiology Reg: Tashi Zhaxiduojie, recording: "Patient underwent DC cardioversion this afternoon at the Cath Lab with unsuccessful conversion into sinus rhythm. Stable after procedure, advised patient not to drive for at leas[t] 24 hours and explained the relevant risks. Patient stated that he will sleep in his car after discharge. Offered help by contacting social worker regarding arranging potential accommodation for him, however, this was declined by patient." 105.3 I now concede that I made an error as the correct information should be the progress note at page 37 which I transcribe as follows: "FSH progress note - nursing 07.01.22 10.57am Harrup, Samantha [he 130248] Nurse Unit Manager. "Advised Dr Paul that Mr Barker has driven from Karratha and slept in his car in hospital car park overnight and intends to drive home to Karratha on discharge tomorrow. Dr Paul requests that post procedure safety concerns be reiterated to the patient bu[t] wishes to proceed with the case as planned. Risk of bleeding and discomfort related to access site reiterate to Mr Barker." 105.4 The hospital notes commence with information related to Mr Barker's hospital admission in January 2022, notes then change to his previous admissions in the second semester of 2021; and conclude with hospital notes referring back to his January 2022 admission to hospital. 105.5 Hospital notes set out what medication the applicant was prescribed in January 2022, the notes referred to at paragraph 49.3 of my affidavit read as if the applicant had been advised not to drive, however on review that -- 15 of 63 -- [2026] WASAT 74 Page 16 advice relates to the August 2021 admission where similar concerns to drive following procedure was given to the applicant. In error I referred to this in my affidavit as advice given to the applicant in January 2022. 65 Having reviewed the medical notes, it is fair to say that the clarification could have been expressed more clearly and more completely. 66 Dealing first with paragraph 105.1, it would appear that while those pharmaceuticals were listed on Mr Barker's subpoenaed medical records for the relevant period, nothing in those records states that Mr Barker was 'discharged with' that medication as stated in paragraph 49.2 of the Ex-Wife's First Affidavit. We further note that Ondansetron is not a painkiller at all, let alone a 'strong' painkiller.32 67 Paragraphs 105.2 to 105.5 of the Ex-Wife's Second Affidavit all deal with paragraph 49.3 of the Ex-Wife's First Affidavit. When read together they clarify that, while paragraph 49 of the Ex-Wife's First Affidavit is concerned with Mr Barker's admission for heart surgery on 7 and 8 January 2022, the quoted passage in paragraph 49.3 is taken from medical notes regarding a previous medical procedure undertaken at the same hospital in August 2021. 68 Paragraph 105.4 suggests that the error arose as a result of a confusing mix of chronologies in the subpoenaed medical notes, although its stops short of making that explicit. 69 The short point of paragraphs 105.2 - 105.4 is that, in August 2021, notes were produced that record that Mr Barker was advised 'not to drive for at least 24 hours' and that he declined assistance to find 'potential accommodation'. When that note is wrongly combined, in paragraph 49 of the Ex-Wife's First Affidavit, with the notes from January 2022 that records Mr Barker's intention to drive home 'to Karratha on discharge tomorrow', it creates, or at least allows, an impression that Mr Barker proposed to drive home immediately on discharge contrary to medical advice. 70 That impression is strengthened in the chapeau to paragraph 49 of the Ex-Wife's First Affidavit, where she deposes that, despite being told 32 Ondansetron is an anti-nausea and anti-emetic. It is often prescribed ancillary to strong painkillers but does not reduce pain itself; ts 57, 22 April 2026. -- 16 of 63 -- [2026] WASAT 74 Page 17 not to do so, Mr Barker 'wanted to drive with the children to Karratha following that advice'. 71 As it turned out, there was evidence in the subpoenaed documents that might reasonably be said to support the view that Mr Barker proposed to drive home upon discharge and that he was counselled against it. Paragraph 105.3 of the Ex-Wife's Second Affidavit notes that Mr Barker had advised nursing staff of his intention to drive home upon discharge, that the surgeon was advised of that and he (the surgeon) had asked that the 'post procedure safety concerns be reiterated'. Read in context, we understand it to say that the 'post procedure safety concerns' include a caution against driving for a period after discharge and that Mr Barker had been advised of the same. However, that evidence was not referred to in paragraph 49 of the Ex- Wife's First Affidavit. 72 As we have noted, paragraph 4 9.4 then deposes that Mr Barker's ex-wife did not handover the children in Perth to allow Mr Barker to 'drive with them to Karratha (1600km) based on safety concerns'. 73 As we have also previously noted, paragraph 49 might be read as an attempt by Mr Barker's ex-wife to justify her refusal to hand over their children to Mr Barker in January 2022 because Mr Barker had indicated to hospital staff that, contrary to medical advice, he proposed to drive home soon after discharge following his procedure and because he was discharged with strong painkiller medication 74 However, while such a reading might be available, that reading fails to acknowledge the introductory words to the chapeau, which makes clear that the knowledge of Mr Barker's ex-wife as to what occurred at Fiona Stanley Hospital in January 2022 is sourced from medical records viewed by her solicitor in April 2022. 75 As such, we agree with Mr Pack that a reasonable reader of paragraph 49 of the Ex-Wife's First Affidavit would have recognised that Mr Barker's ex-wife did not know, in January 2022 when she refused to hand over the children, of Mr Barker's medication, the medical advice or his response to it. Rather, the reasonable reader would have read paragraph 49 as an ex post facto attempt by Mr Barker's ex-wife to justify her refusal to hand over their children in January 2022, based on what she subsequently learned three months later. -- 17 of 63 -- [2026] WASAT 74 Page 18 76 We have gone through this material in some detail in order to make clear that we accept that Mr Barker may have reasonably felt some disquiet when he first read paragraph 49 of the Ex-Wife's First Affidavit. 77 However, a closer reading of the paragraph would have, we are satisfied, clarified at least some of the cause for disquiet. 78 Significantly, a closer reading would also have given Mr Barker a proper basis on which to seek to both correct the errors contained within the paragraph and, perhaps more importantly, ensure that the paragraph was not misunderstood by the presiding judge of the FCWA in the way we have described. 79 That is, when presented with the Ex-Wife's First Affidavit which, on its face, appeared to contain errors and may have been capable of being misread or misunderstood, we consider that Mr Barker should have: (a) contacted Ms L, noted what he considered to be the errors and identified the potential for the paragraph to be misunderstood and asked for those matters to be clarified by further affidavit and/or from the bar table; and (b) if that suggestion was rebuffed: 1. sought to cross-examine his ex-wife in order to correct the errors and clarify the potential misunderstanding; and/or 2. put on a responsive affidavit and made submissions which emphasise the opening words to the chapeau and the relevant chronology so as to ensure there was no misunderstanding. 80 However, as we will now describe, while Mr Barker's first response was to ask Ms L for an explanation, when none was forthcoming he proceeded to accuse her of deliberately fabricating evidence. -- 18 of 63 -- [2026] WASAT 74 Page 19 Mr Barker's Allegations Ground One 81 The Board alleges that, in an affidavit sworn on 1 December 2022 and filed with the FCWA on 30 January 2023 (First Barker Affidavit), and in a complaint lodged with the Board on 1 February 2023, Mr Barker made allegations of dishonesty and criminal conduct against Ms L and then repeated, in similar form, those allegations numerous times. Mr Barker Made the Allegations Against Ms L in his Affidavit 82 The First Barker Affidavit is before us.33 83 We are satisfied, and we find, that in it Mr Barker 'made allegations of dishonesty and criminal conduct' against Ms L.34 Indeed, Mr Barker admitted that he had done so.35 84 Having said that, in the Board's Statement of Facts and Contentions, the Board refers to and relies upon paragraphs 12 - 17, 21 and 23 of the First Barker Affidavit as containing the allegations against Ms L which form the basis for Ground One.36 However, three of those paragraphs do not contain allegations of impropriety. 85 Paragraph 14 asserts that there is no evidence in the subpoenaed material of the advice referred to in the chapeau to paragraph 49 of the Ex-Wife's First Affidavit, which is quoted in paragraph 13. However, neither paragraph alleges fabrication.37 86 Also, at paragraph 15, Mr Barker acknowledges that the subpoenaed material includes what is set out in paragraph 49.1 but alleges that the records are 'factually wrong' and that they were included in the Ex-Wife's First Affidavit 'to mislead the Court'. While the allegation of an intention to mislead the Court suggests knowledge of the factual error, it does not amount to an allegation of fabrication.38 33 Applicant's Bundle, page 266 - 273. 34 Board's Statement of Facts and Contentions, paras 11 and 12. 35 See, for example, his Statement of Facts and Contentions, filed 17 September 2025. 36 Board's Statement of Facts and Contentions, para 11. 37 Applicant's Bundle, page 269. 38 Applicant's Bundle, page 269. -- 19 of 63 -- [2026] WASAT 74 Page 20 87 Nonetheless, the other paragraphs relied upon do contain allegations by Mr Barker against Ms L of dishonesty and criminal conduct by way of fabricating evidence: (a) at paragraph 12, Mr Barker deposes that the subpoenaed documents, which he says he has inspected, and the notes he took while inspecting them, 'together proves [sic] that [Ms L and her firm] have in fact fabricated subpoenaed 'evidence' from/in the FSH subpoenaed material';39 (b) at paragraphs 16 and 17, Mr Barker deposes that paragraph 49.2 of the Ex-Wife's First Affidavit 'is a complete fabrication of evidence' by Ms L and her firm;40 and (c) at paragraph 21, Mr Barker identifies that the note written on 9 August 2021 had been incorrectly attributed to 7 January 2022 which he then describes at paragraph 23 as a 'false and misleading fabrication of the FSH subpoenaed material'.41 88 As noted above, Mr Barker's first response to the Ex-Wife's First Affidavit was to ask Ms L to identify the source material for paragraphs 49.2 and 49.3.42 At paragraphs 24 and 25 of the First Barker Affidavit, Mr Barker says he received no response to those emails. At paragraph 26 he says that he wrote to her in order to give her an opportunity to respond before he complained about her to the Board. As such, he appears to have written the email in the belief that Ms L had fabricated the evidence and her subsequent silence was taken by Mr Barker as confirmation of that view. 89 We pause here to note the absolute language used in the First Barker Affidavit. So, for example, at paragraph 12 Mr Barker deposes that the documents and his notes 'prove' that Ms L fabricated evidence, rather than noting the error and suggesting several possible explanations, only one of which is fabrication. Equally, paragraph 17 describes the evidence as a 'complete fabrication'. 90 We also pause to note that Mr Barker's allegations are made against Ms L and her firm. As best as we can determine, there is no suggestion that anyone else from that firm is the subject of Mr Barker's allegations. Rather, Mr Barker appears to refer to the firm as Ms L's 39 Applicant's Bundle, page 268. 40 Applicant's Bundle, page 269. 41 Applicant's Bundle, page 270. 42 Applicant's Bundle, pages 287 - 288. -- 20 of 63 -- [2026] WASAT 74 Page 21 alter ego. As we will see, in some subsequent documents, reference is made to the firm rather than Ms L, while in others the allegations are made against only Ms L, and no mention is made of her firm. In our view, nothing turns on these differences in expression. That is because the gravamen of Ground One is the baseless allegation of serious impropriety; whether the target is Ms L or her firm appears to us to be immaterial. 91 The same may be said of later allegations against the Board 'and/or' the Legal Services and Complaints Committee (Committee) and various officers or employees of those bodies. Mr Barker Made the Allegations Against Ms L in his Complaint to the Board 92 The Board also alleges that Mr Barker's allegations against Ms L are 'in substance, repeated' in a complaint Mr Barker made to the Board on 1 February 2023. We agree, and for the following reasons find that Mr Barker made those allegations in that complaint. Again, Mr Barker did not suggest otherwise.43 93 Mr Barker's complaint of 1 February 2023, upon which the Board relies in this regard, actually commences on 29 January 2023. By an email of that date to Mr Barich, the Board's Manager of Regulatory Operations, Mr Barker raised certain matters in the context of the Board's decision to suspend his practising certificate.44 94 In his email to Mr Barich, Mr Barker said that he wrote to make the Board 'aware of facts regarding the information received by [it]'.45 In that regard he said that he understood that that information came from three sources, one of which was his ex-wife's solicitors. He then alleged that Ms L's firm had 'fabricated subpoenaed evidence (ie, made up subpoenaed 'facts')'.46 Amongst other things, he then:47 (a) asked a series of apparently rhetorical questions, all of which proceed on the basis that his allegation that Ms L fabricated evidence is correct; and (b) alleged that Ms L's firm was 'intentionally using the LPBWA/LPCC and their misleading reports against [him]' to 43 See, for example, his Statement of Facts and Contentions, filed 17 September 2025. 44 Applicant's Bundle, pages 295 - 298. 45 Applicant's Bundle, page 296. 46 Applicant's Bundle, page 296. 47 Applicant's Bundle, page 296 - 297. -- 21 of 63 -- [2026] WASAT 74 Page 22 further his ex-wife's case against him and to divert attention from Ms L's firm's 'extremely serious breaches' of the Conduct Rules. 95 Mr Barich replied to Mr Barker advising that his email had been forwarded to Mr Colella.48 Mr Barker then, on 30 January 2023, sent an email to Mr Colella in which he purported to 'provide some context'.49 96 Amongst other things, in that email Mr Barker accepted that he had made 'unprofessional' comments regarding Ms L and her firm, which he asked to be seen 'in terms of the behaviour of [Ms L and her firm] discussed in these two emails regarding [Ms L's firm] misleading WAPOL and [the Board] and fabrication of evidence ...'50 We read the reference to 'these two emails' as including his previous email to Mr Barich. 97 Mr Colella replied to Mr Barker advising that, as Mr Barker had engaged counsel in relation to his application to review the cancellation of his practising certificate, it was not appropriate for him (Mr Colella) to engage directly with Mr Barker.51 98 In response, Mr Barker replied by insisting that his 'complaints'52 against Ms L's firm were, subject to a small degree of 'cross-over', separate and distinct from the Tribunal proceedings brought against him for which he had engaged counsel.53 99 He then said that he 'officially request[s]' that [the Board/Committee] investigate Ms L's firm's 'handling of and actions and advice to [his ex-wife]…' in relation to certain matters, which included the 'fabrication of subpoenaed evidence as detailed in [his] email to Mr Barich/[Board] of 29 January 2023'.54 By way of an asterisk, that last quoted sentence is explained as 'fabricated evidence to their client that caused their client to provide false evidence in the FCWA - i.e., perjure herself …'55 48 Applicant's Bundle, page 295. 49 Applicant's Bundle, page 293. 50 Applicant's Bundle, page 293. 51 Applicant's Bundle, page 292. 52 We note that elsewhere Mr Barker denies that his email of 1 February 2023 amounts to a 'complaint' against Ms L. 53 Applicant's Bundle, page 289. 54 Applicant's Bundle, page 289. 55 Applicant's Bundle, page 290. -- 22 of 63 -- [2026] WASAT 74 Page 23 100 On that basis we are satisfied, and we find, that Mr Barker repeated, in substance, the allegations against Ms L in his complaint to the Board on 1 February 2023. Repetition of the Ms L Allegations 101 By paragraphs 21 - 24 and 26 - 2856 of the Board's Statement of Facts and Contentions, the Board alleges that Mr Barker repeated, in various fora and across various dates, the allegations made against Ms L that she fabricated the evidence (sometimes described by him as engaging in criminal conduct) included in paragraph 49 of the Ex- Wife's First Affidavit. 102 In each case we are satisfied, and we find, that Mr Barker made those allegations. Again, he did not deny that he did so. 103 In each case the relevant paragraph contains a direct quote of what the Board alleges that Mr Barker said. In each case, the Board has included in its Bundle the document from which the quote is taken. 104 In what follows, we have replicated the relevant paragraph verbatim (save for the anonymisation of Ms L's name and minor associated changes) and, by footnote following either the paragraph or the quote upon which the Board's allegation is based, we give the page number of the Board's Bundle that identifies the location of the document from which that allegation or quote is taken in that Bundle. That is, in each case, we find that Mr Barker made the allegation alleged by the Board in the respective paragraph. 21. On 23 July 2024, the Respondent appeared for himself in a directions hearing in the State Administrative Tribunal VR 20 of 2023 (Disciplinary Proceedings), in which he alleged he "caught [Ms L] fabricating evidence".57 22. On 20 August 2024, the Respondent appeared for himself in a directions hearing in the Disciplinary Proceedings, in which he referred to "[Ms L], who basically, literally fabricated evidence in the Family Court, and there's clear evidence of that".58 In response, the presiding Judge cautioned the Respondent about 56 By paragraph 25, the Board notes that the presiding judge of the FCWA made comments about Mr Barker's allegations and imposed an injunction restraining him from filing further documents which included allegations against Ms L. As such, they do not include allegations against Mr Barker. 57 Applicant's Bundle, page 344. 58 Applicant's Bundle, page 372. -- 23 of 63 -- [2026] WASAT 74 Page 24 "using that kind of language"59 and "making that kind of assertion about another practitioner".60 23. On 13 November 2024, the Respondent lodged a further affidavit with the Family Court, which he also served on [Ms L], in which he repeated, in substance, the [allegations against Ms L].61 That affidavit was not accepted for filing by the Family Court. 24. On 22 January 2025, the Respondent appeared for himself at a hearing in the Family Court, during which he repeated, in substance, the [allegations against Ms L].62 Particulars The Applicant relies on the following passages of the transcript: (a) p10: "So I'm not sure if the court is actually fully aware of the circumstances around my - it's not alleging any more - my proving that [Ms L] fabricated evidence and the loss of my certificate. And the court has seemed determined to remain in the dark about that";63 (b) p 12: "…so I challenged [Ms L] about the fabrication of evidence back in July '22 and then I rechallenged her again in August '22, and she didn't get back to me";64 (c) p 31 - 32: "…legal practitioners have a code of conduct … that is supposed to be irrefutable, and apparently [Ms L] can be a criminal - can behave in a way but still, basically, be accepted by the court, and I just don't understand that and I never will …"65 "… it's perverting the course of justice".66 … 26. On 13 November 2024,67 10 December 2024,68 17 January 2025,69 20 January 202570 and 17 February 2025,71 the 59 Applicant's Bundle, page 372. 60 Applicant's Bundle, page 372. 61 Applicant's Bundle, pages 390 - 392. 62 Applicant's Bundle, pages 500 - 502. 63 Applicant's Bundle, page 500. 64 Applicant's Bundle, page 502. 65 Applicant's Bundle, pages 521 - 522. 66 Applicant's Bundle, page 522. 67 Applicant's Bundle, pages 383 - 384. 68 Applicant's Bundle, pages 422 - 424. 69 Applicant's Bundle, page 461. 70 Applicant's Bundle, pages 474 - 475, 482 - 484, 487. 71 Applicant's Bundle, pages 534, 535, 537, 542. -- 24 of 63 -- [2026] WASAT 74 Page 25 Respondent lodged letters with the Family Court, addressed to the Principal Registrar, which he also served on other parties, in which he repeated, in substance, the [allegations against Ms L]. Those letters (save for the 17 February 2025 letter) were not accepted for filing by the Family Court. Particulars The Applicant relies on two separate letters lodged 20 January 2025, one bearing the date 18 January 202572 and the other bearing the date 20 January 2025.73 27. Following the closure of the Complaint, the Respondent continued to allege criminal offences by [Ms L] in emails to representatives of the Board, by way of emails dated 10 January 2025 [11.49am]74 and [7.39pm],75 11 January 2025 [4.28pm],76 12 January 2025 [4.00am],77 16 January 2025 [11.02am]78 and [11.50am],79 and 6 February 2025 [4.14pm].80 28. On 21 March 2025, the Respondent lodged for filing with the State Administrative Tribunal a letter in which he continued to allege criminal offences by [Ms L].81 Ground Two 105 The Board alleges that on 10 December 2024 and 20 January 2025, Mr Barker lodged letters for filing with the FCWA, addressed to the Principal Registrar, in which he alleged that the FCWA had 'ignored, condoned or refused to address criminal behaviour'82 that it (the FCWA) had 'engaged in conduct which amounted to (or would amount to, if it didn't accept [his] application) a perversion of the course of justice'.83 106 In the relevant Particulars, the Board says that it relies upon 'the entirety of the letters read in their full context'.84 72 Applicant's Bundle, page 474ff. 73 Applicant's Bundle, page 482ff. 74 Applicant's Bundle, page 445. 75 Applicant's Bundle, page 445. 76 Applicant's Bundle, page 449. 77 Applicant's Bundle, page 450. 78 Applicant's Bundle, page 455. 79 Applicant's Bundle, page 453. 80 Applicant's Bundle, page 531. 81 Applicant's Bundle, pages 544 - 545. 82 Board's Statement of Facts and Contentions, para 30.1. 83 Board's Statement of Facts and Contentions, para 30.2. 84 Board's Statement of Facts and Contentions, Particulars to para 30. -- 25 of 63 -- [2026] WASAT 74 Page 26 107 Those letters are before us.85 In them, Mr Barker alleged that the FCWA had ignored a number of matters, only some of which concern his allegations against Ms L. 108 However, in the Board's particulars to its contention that Mr Barker ought to have known that he had no reasonable grounds or basis for the allegations in those letters, reference is only made to matters concerned with the allegations against Ms L.86 109 At the hearing, Mr Pack quite properly accepted that given those particulars, and especially given Mr Barker's non-attendance at the hearing, the Board's case in relation to Ground Two could go no further than Mr Barker's allegations against the FCWA that concern his allegations against Ms L.87 110 We will, therefore, limit our consideration of Ground Two accordingly. Mr Barker Made One of the Allegations in his Letter of 10 December 2024 111 Under the heading 'Affidavits and Applications', Mr Barker's letter to the FCWA of 10 December 2024 stated that:88 Since at least November 2022 the FCWA has refused to accept evidence of the respondent's solicitor fabricating evidence in the FCWA. It was rejected at the time, and I refiled it seven days later in a shortened version, which was also rejected by the Court - see 1 December 2022 affidavit attached. Since then the Court has refused to accept any documents that criticised the ethics of the respondent's lawyer or that shows that she has acted in a criminal way. 112 After addressing other matters, Mr Barker wrote that he would shortly 'be filing a Form 2 and supporting affidavit regarding this matter' which would include a request that the FCWA: … order WA police to [sic - investigate?] Ms L for fabricating subpoenaed evidence;89 and that: 85 Applicant's Bundle, pages 422 - 442 and 482 - 490. 86 Board's Statement of Facts and Contentions, 'Particulars' to para 32. 87 ts 44, 22 April 2026. 88 Applicant's Bundle of Documents, page 422. 89 Applicant's Bundle of Documents, page 423. -- 26 of 63 -- [2026] WASAT 74 Page 27 The [FCWA's] 'refusal to accept the [sic - or?] act on this application … will be a perversion of the course of justice.'90 113 We are, on the basis of that passage, satisfied that in his letter to the FCWA of 10 December 2024, Mr Barker alleged that a future failure by FCWA to accept his foreshadowed application (the Form 2, supported by affidavits), which he said would ask the Court to refer Ms L to the police for her alleged fabrication of evidence, would amount to a perversion of the course of justice. That is, we are satisfied that Mr Barker made the allegation described at paragraph 30.2 of the Board's Statement of Facts and Contentions. Mr Barker Made One of the Allegations in his Letter of 20 January 2025 114 Mr Barker's letter to the FCWA of 20 January 2025 states that '[j]ustice has been perverted in this matter in at least the following ways'. Amongst the 11 dot points which follow is that the FCWA has refused 'to accept affidavits describing the criminal and unethical behaviour' of Ms L, amongst others, and 'the likely refusal of this submission.'91 115 He also, after again repeating the allegation that Ms L fabricated subpoenaed evidence, states that 'the [FCWA] has constantly ignored the attempts to pervert the course of justice in this matter, when it should be seeking to enact the criminal law and stop the perversions of the course of justice'.92 116 The Board's allegation described at paragraph 30.1 of the Board's Statement of Facts and Contentions describes Mr Barker's conduct as alleging that the FCWA had 'ignored, condoned or refused to address criminal behaviour'. 117 Although his letter of 20 January 2025 does not use the word 'condone' or the phrase 'refuse to address', we are satisfied that both that word and that phrase accurately describe the substance of Mr Barker's allegation against the FCWA. 118 'Condone' means to 'pardon or overlook (an offence)'.93 In the present circumstances, it therefore carries a very similar meaning to 'ignore' in that, in his letter, Mr Barker alleges that the FCWA is allowing Ms L's conduct to continue uninvestigated and unpunished 90 Applicant's Bundle of Documents, page 424. Underlining in original. 91 Applicant's Bundle of Documents, page 483. 92 Applicant's Bundle of Documents, page 484. 93 Macquarie Dictionary Online. -- 27 of 63 -- [2026] WASAT 74 Page 28 and, in doing so, is pardoning or overlooking it. The same may be said of the Board's allegation that in his letter Mr Barker alleges that the FCWA 'refused to address criminal behaviour'. 119 That is, the Board's allegation that Mr Barker's letter alleged that the FCWA had 'ignored, condoned or refused to address criminal behaviour' should not be understood as expressing three different concepts but, rather, the same concept in three (only slightly) different ways. 120 For these reasons we agree with the Board's allegation at paragraph 30.1 of the Board's Statement of Facts and Contentions and we find that Mr Barker's allegation that the FCWA has ignored his allegations against Ms L and his allegation that the FCWA 'should be seeking to … stop the perversions of the course of justice' amount to allegations that the FCWA had 'ignored, condoned or refused to address criminal behaviour'. Ground Three 121 By Ground Three, the Board alleges that on various occasions in January and February 2025, and in a variety of fora, Mr Barker alleged that the Board and/or some of its officers had engaged in 'corruption or misfeasance'94 and 'criminal conduct including perverting the course of justice'.95 122 Some context is necessary. By a letter dated 10 January 2025, the Board dismissed Mr Barker's complaint against Ms L, made in his email of 1 February 2023. In summary, the Board's letter of 10 January 2025 identified five 'Issues' raised by Mr Barker and dismissed them as follows:96 (a) Issue One was Mr Barker's allegation that Ms L's firm had fabricated subpoenaed evidence. The Board's letter stated that the Issue had been dismissed as vexatious, as had Issues Three and Five, with the Board concluding that Mr Barker had not identified anything in those Issues beyond the conduct already discussed in Issue One; (b) Issue Two was Mr Barker's allegation that Ms L's firm had aided and abetted Mr Barker's ex-wife to provide misleading 94 Board's Statement of Facts and Contentions, para 33.1. 95 Board's Statement of Facts and Contentions, para 33.2. 96 Applicant's Bundle, page 436. -- 28 of 63 -- [2026] WASAT 74 Page 29 and incomplete information to the police regarding Mr Barker's alleged breaches of a Conduct Agreement Order. The Board's letter stated that the investigation of the Issue was closed on the basis that Mr Barker had not responded, or had responded inadequately, to a request for further information; and (c) Issue Four was Mr Barker's allegation that Ms L's firm had provided intentionally misleading information, and edited documentation, to the Board and/or the Committee. The Board's letter stated that the investigation of the Issue was closed as requiring no further investigation because 'there is no evidence to suggest the Practice has provided misleading information to the Board or the Committee'. Emails to the Board 123 The Board relies upon six emails sent by Mr Barker to one or more of the Board's employees. In them, Mr Barker makes various allegations against the Board, the Committee and/or various employees. 124 We repeat that we are satisfied that the slightly different formulations of the target of Mr Barker's allegations are immaterial; whether they are against the Board, the Committee, one of more employees, or some combination thereof, appears to us to be immaterial in the present context. 125 In an email sent 10 January 2025 at 11.49 am to Messrs Bailey and Colella (copied to Mr Barich), after setting out various sections of the Criminal Code, including s 129 (Fabricating evidence), s 135 (Conspiring to defeat justice) and s 143 (Attempting to pervert course of justice), Mr Barker said:97 I could go into all the Uniform Coded rules you have also just broken, but I'll save them for another day. Being the LSCC yourselves is not going to save you either. Wow ... I am seriously amazed by what you have just done in the name of law in WA ... I should say 'attempted to pervert' ... I mean do. 126 Read in context, that is, his response to the Board's dismissal of his complaint regarding Ms L, we are satisfied that the first paragraph alleges breaches of ethical rules and that the third paragraph amounts to 97 Applicant's Bundle, page 447. -- 29 of 63 -- [2026] WASAT 74 Page 30 an allegation that the officers had perverted the course of justice by dismissing his complaint against Ms L. 127 In an email sent the same day at 7.39 pm to the same officers of the Board, after attempting to burnish his legal abilities, Mr Barker said:98 If you think your letter dated today has overwhelmed me, you are wrong. In fact, it makes it easier for me to prove you have perverted the course of justice. In a similar way, my ex-wife's affidavit trying to cover up [Ms L's] fabricated evidence made my job of proving [Ms L] fabricating evidence easier too - because I can add and prove other ethical breaches and criminal law violations to fabrication of evidence. All of which I can now prove that your [sic - you?] have perverted - in writing under the LSCC letterhead. FYI, I suggest you look under the criminal charges against public officials in the Criminal Code - the definition of 'public official' includes you guys. 128 In this case the language used is clear and includes allegations, in both the first and second paragraphs, that the officers have perverted the course of justice, and, in the third paragraph, that they engaged in other criminal conduct by dismissing his complaint against Ms L, and we find accordingly. 129 At 4.28 pm on the following day, 11 January 2025, Mr Barker again emailed Messrs Bailey and Colella, copied to Mr Barich and, again, alleged that they had perverted the course of justice. By way of example, the first paragraph asked, rhetorically:99 I have to ask, do you really think your perverting the course of justice in writing under the LSCC letterhead will free you from close criminal examination by Justices, Judges, WA police, and other judicial officers? 130 Again, we find that the email alleged that the officers have perverted the course of justice by dismissing his complaint against Ms L. 98 Applicant's Bundle, page 445. 99 Applicant's Bundle, page 449. -- 30 of 63 -- [2026] WASAT 74 Page 31 131 On 12 January 2025 at 4.00 am, Mr Barker again emailed Messrs Bailey and Colella, copied to Mr Barich and, after alleging that they had treated him unfairly, said:100 Mr Colella, my LSCC complaint about you is going to take a while. Also, look up 'corruption in the role of a public official'. Different Act but on first reading it applies to your roles. 132 We are satisfied that the language used by Mr Barker clearly includes allegations of corruption against Mr Colella, against whom he also appears to allege professional misconduct. 133 On 16 January 2025 at 11.01 am Mr Barker responded by email to an email sent by Mr Bailey, regarding the investigation of a complaint made by Mr Barker against another practitioner. The Board relies upon the following:101 And then throw in the fabrication of evidence of the LSCC! … I haven't started my LSCC complaint against Mr XXXX yet, but I currently believe the criminal and ethical breaches he has made are into the double-figures. 134 Even when read in the context of the emails as a whole, it is difficult to understand whether the first paragraph refers to fabrication of evidence by the Committee or by Ms L which was then provided to the Committee. The latter is consistent with Mr Barker's previous approach and we prefer it. When read in the context of the 12 January 2025 email, the reference to 'Mr XXXX' in the second quoted paragraph is likely to be a reference to Mr Colella. Like the earlier email, this one alleges, at least, professional misconduct. 135 On 19 January 2025, Mr Barker emailed Mr Bailey, attaching three documents, which he appears to claim support allegations of misconduct or criminality against Mr Colella, Ms L and his ex-wife.102 Mr Bailey's responsive email advised that the Board was not investigating Mr Colella, Ms L or Mr Barker's ex-wife.103 In response 100 Applicant's Bundle, page 450. 101 Applicant's Bundle, page 455. 102 Applicant's Bundle, pages 480 - 481. 103 Applicant's Bundle, page 479. -- 31 of 63 -- [2026] WASAT 74 Page 32 to that email, Mr Barker emailed Mr Bailey on 20 January 2025 and said, amongst other things:104 You guys do know that you are not the WA police, and your actions point to perversion of the course of justice and official corruption of a public official? 136 Again, we are satisfied that, by the above, Mr Barker alleges that the actions of those officers of the Board amount to corrupt conduct and a perversion of the course of justice. Submissions in the FCWA 137 The Board alleges that on 22 January 2025, during a 'monitoring' hearing in the FCWA, Mr Barker said that the Board had: fabricated evidence, so, basically, misconstrued the 8 April 2021 Family Court hearing and, basically said I said something during that hearing that I didn't actually say. 138 That allegation is supported by the transcript of that hearing, which is before us and which, save for immaterial differences, records Mr Barker speaking the alleged words.105 139 Mr Barker's allegation of fabrication was made in response to a submission by counsel for Mr Barker's ex-wife, who handed up a copy of the Board's letter of 10 January 2025 and noted the Board's decision to end the investigation of Mr Barker's complaint against Ms L. 140 Again, the language is clear - Mr Barker alleged that the Board had engaged in criminal conduct by fabricating evidence. Letters to the FCWA 141 The Board alleges that on 17 February 2025, Mr Barker lodged two letters for filing with the FCWA, both dated 16 February 2025, and both of which alleged that the Board and/or certain of its officers, had engaged in corruption or misfeasance and/or criminal conduct. 142 Both letters are before us. The first106 letter lodged for filing sought the release of documents filed in the FCWA to allow them to be filed in (other) Tribunal proceedings. The Board relies upon 104 Applicant's Bundle, page 478. 105 Applicant's Bundle, pages 491 - 530, at page 515. The transcript differs very slightly from the Board's allegation in that 'actually' appears before 'didn't' rather than after it, and a comma appears after 'basically', but those typographical errors are immaterial. 106 Applicant's Bundle, pages 533 - 536. -- 32 of 63 -- [2026] WASAT 74 Page 33 three passages, which are italicised in the following quotes from the letter: I do not know what the link is between [Ms L] and the LSCC but since 8 September 2022, when I was served the section 83 notice, I have always known that the LSCC's Notices were corrupted, incompetent and unprofessional documents, and that the removal of my LPC [Legal Practising Certificate] and the destruction of OSPREY Legal [Mr Barker's firm] were criminal acts.107 … These matters [this appears to be a reference to VR 20 of 2023, which is another disciplinary proceeding brought against Mr Barker, and the FCWA proceedings] are linked by the unprofessional, unethical and criminal behaviour of [Ms L], and the unprofessional, unethical and criminal behaviour of some of the LSCC's officers. I intend to seek a full police investigation and prosecution of [Ms L] and certain LSCC's officers through the judicial review of their actions.108 … It will be a perversion of justice if the FCWA restricts my ability to release FCWA documents to the SAT, when … the LSCC has no restriction in using the FCWA documents in the SAT matter against me - including in one case the LSCC fabricating the contents of 8 April 2021 FCWA hearing transcript to use it against me.109 143 Each of the above passages use the language of criminality, either generically or by specifying the fabrication of evidence, when describing the conduct of the Committee and that of some officers. The first passage also describes the Committee's Notices as 'corrupted' which, in the context, we are satisfied, was not intended to mean altered or damaged but, rather, was intended to mean that they were the result of dishonesty. 144 The second of the letters lodged for filing on 17 February 2025 by Mr Barker110 also deals with Mr Barker's request for the FCWA to release documents to the Tribunal. In it, he seeks the release of only certain documents, rather than the entirety of the FCWA's file where, he says, others had submitted that 'context' requires that all of them are released. Amongst other things, he says:111 107 Applicant's Bundle, page 534. 108 Applicant's Bundle, page 535. 109 Applicant's Bundle, pages 535 - 536. 110 Applicant's Bundle, pages 537 - 543. 111 Applicant's Bundle, page 539. -- 33 of 63 -- [2026] WASAT 74 Page 34 … the real context of the requested release of the FCWA matter documents is my right to a fair and equitable SAT hearing, and the LSCC's incompetent, unprofessional, unethical and even criminal conduct (LSCC's Conduct) in producing their LSCC's Notices and Annexure 'A's. I.e., the SAT does not need the 'context' of my FCWA matter, just the proof of the LSCC's Conduct in the removal of my LPC, the destruction of OSPREY Legal, and SAT matter. 145 Shortly thereafter, he addresses what he says is the Committee's fabrication of what he said at a hearing before the FCWA on 8 April 2021. To assist an understanding of later matters, it is convenient to here reproduce a lengthy passage:112 LSCC's Fabrication of the 8 April 2021 FCWA Transcript (LSCC's Fabrication) On 8 April 2021, the FCWA held the first hearing into my 19 February 2021 family law property application. I was nervous, and I was seeking to arrange a partial family law property settlement for family law property matters as [Mr Barker's ex-wife] held all the post- separation assets, and she had sought an FVRO against me that I was concerned would affect my OSPREY Legal business. I had arranged many partial property settlements for my OSPREY Legal clients, so for me it was just part of a family law property matter. However, in the LSCC's Notices the LSCC's fabrication states: 12. Throughout the course of the FC Proceedings you have engaged in conduct which is likely, to a material degree, either or both, diminish the public confidence in the administration of justice and bring the profession into disrepute, namely: a. during a hearing on 8 April 2021 (April Hearing) before Magistrate Glass, you sought an 'urgent final settlement' and compensation for reputational damage causing Magistrate Glass to state, amongst other things, that: i. 'This is a statutory court. My power is by way of statute. You will need to address me on the statute and the relevant mandatory considerations that I have to take into account. Reputational damage is an unknown cause of action to my court'; and ii. '…there are other difficulties with it. I've asked you what power you're relying on. You haven't been able to address me on that'; 112 Applicant's Bundle, pages 539 - 540. -- 34 of 63 -- [2026] WASAT 74 Page 35 b. you brought up the issue about 'settlement' several times during the April Hearing causing Magistrate Glass to state, amongst other things, that: i. Mr Barker, we're covering old ground again'; ii. 'and we're back to the first problem that we started with'; and iii. We're repeating old ground'. In the LSCC's Annexure 'A' filed 7 March 2023 their [sic - they?] state: 33 On 8 April 2021, the Respondent appeared at a hearing before Magistrate Glass in the FC Proceedings. The Respondent had filed an application in which he sought an "urgent final settlement" of the FC Proceedings, but did not specify any provision or power by which the Court could make such an order. During the hearing: (a) the presiding Magistrate asked the Respondent to clarify what he was seeking and the power he was relying on, which the Respondent was unable to specify; (b) nonetheless, the Respondent persisted in his application; and (c) the Respondent accused [his ex-wife] of having lied to the Court, telling the presiding Magistrate that [his ex-wife] "has lied to your Honour already", and that she was seeking parental responsibility "for no reason" and which could only be justified by "the lies she has made up". Not only are the above LSCC's fabrications two different fabrications of the same FCWA transcript, but they both dealt with FCWA matters which were beyond the scope of the LSCC. And yet it padded-out the LSCC's Notices and 7 March 2023 Annexure 'A', but disappeared from the two following LSCC's attempts to draft credible Annexure 'A's on 17 march [sic] and 6 August 2024. 146 Again, the language used by Mr Barker clearly alleges, in the first quoted passage, that the Committee had engaged in unspecified criminal conduct in its production of Notices and its Annexure A to the application to the Tribunal and, in the final paragraph of the second quoted passage, that it had fabricated evidence. -- 35 of 63 -- [2026] WASAT 74 Page 36 Conduct in VR 20 of 2023 147 The Board alleges that, on 21 March 2025, Mr Barker lodged for filing with this Tribunal in VR 20 of 2023, a letter which: (1) in substance repeated the allegations made in the two letters of 16 February 2025; (2) further accused the Board and/or its officers of acting unprofessionally, unethically and criminally in an attempt to quiet his complaints; and (3) alleged the Committee was an 'organised crime organisation'.113 148 That letter is before us. It's first paragraph is as follows:114 I refer to the above matter, and refer to multiple letters and emails from Legal Services Complaints Committee (LSCC) staff that are very clearly intended to be threatening and abusive towards me, and intended to quiet my complaints against LSCC and its staff unprofessional, unethical, and in some instances criminal behaviour. 149 It then says, amongst other things:115 I allege that the LSCC is insisting that [Ms L] did not fabricate subpoenaed FCWA evidence - and induce my ex-wife into filling a further false affidavit to again try to explain [Ms L's] fabricated evidence - because the LSCC is trying to protect its officer's conduct being scrutinised, most notably Mr Colella. [Ms L]s' fabrication of subpoenaed FCWA evidence, which the LSCC has okayed as professional and ethical behaviour (!), is subject to both FCWA and Her Honour's SAT judicial review, and is still an open legal question. … The letter received again today, as well as one I received on the 10 January 2025 - see attached - are examples of LSCC officers seeking to use the LSCC's power and influence to abuse, threaten and coerce me into ignoring the unprofessional, unethical and criminal behaviour of some of its officers, most notably Mr Colella. 150 It finishes with a 'Google' definition of 'organised crime organisation' and says:116 My experience of the LSCC or at least some of its staff in the last two- plus [sic - years?] is that it is an organised crime organisation, intent in my case to protect [Ms L] (for whatever reason - corruption, nepotism or to cover up their misconduct) and themselves. 113 Board's Statement of Facts and Contentions, para 36. 114 Applicant's Bundle, page 544. 115 Applicant's Bundle, page 545. 116 Applicant's Bundle, page 546. -- 36 of 63 -- [2026] WASAT 74 Page 37 151 Accordingly, there can be no doubt that Mr Barker's 21 March 2025 letter accuses the Board's officers of acting unethically and criminally in an attempt to quiet his complaints and alleges that the Committee is an 'organised crime organisation'. 152 We are not, however, satisfied that the letter, 'in substance' repeats the allegations made in the two letters of 16 February 2025 to the extent that those two letters allege the fabrication by the Committee of the 8 April 2021 FCWA transcript. That is because the 21 March 2025 letter makes no reference to that issue. 153 Finally, the Board alleges that in the course of a directions hearing in VR 20 of 2023, Mr Barker alleged that the Board and/or certain of its officers had engaged in, or were engaging in, corruption or misfeasance and criminal conduct including perverting the course of justice.117 154 The transcript of that hearing bears out the Board's allegation. In that hearing, Mr Barker sought certain orders, one of which was the report of Mr C, who the Board had appointed to manage Mr Barker's firm. In seeking to justify the request, Mr Barker said:118 … essentially, it goes to the fact that the Legal Board - Practice Board destroyed a perfectly good, well run legal practice for no - for apparent reason other than - well, as I wrote to the board the other day, it's either corruption, incompetence or nepotism. So - and, I think - and - which deals with Mr Colella, frankly. … 155 After her Honour, President Glancy, determined that she lacked the power to make the orders sought, Mr Barker said:119 Yes. Well, I'm - I mean, I just - I just want to put on notice, into the transcript, that (indistinct) Legal Services Committee, or the Legal Services Complaints Committee is supposed to be the policeman of the Legal Practice Commission, or Legal Practice of Western Australia in Western Australia. Mr Colella is using the Legal Practice Board and his power in that, to cover up his own conduct. … It's - well, your Honour, he - his action destroyed a legal practice and, essentially, almost destroyed my life, and I'm not allowed to comment on it. I mean, I'm sorry. And, I believe, his - he - his conduct was criminal on many, many, many levels. So - and I will - you know, I will be fighting this until the end of time so - for that reason. 117 Board's Statement of Facts and Contentions, para 37. 118 ts 22, 25 March 2026. 119 ts 23, 25 March 2026. -- 37 of 63 -- [2026] WASAT 74 Page 38 156 We are satisfied that the allegation that Mr Colella has used his position within the Board to 'cover up' his own criminal conduct alleges each of criminal conduct, corruption (in that it alleges that Mr Colella has used his own position for his own benefit) and the perversion of the course of justice, in that Mr Colella is alleged to have prevented the investigation of criminal conduct. 157 Accordingly, we are satisfied that the Board's allegation is made out - that Mr Barker, on 25 March 2025, in VR 20 of 2023, alleged that the Board and Mr Colella had engaged in corruption and criminal conduct, including perversion of the course of justice. There are no Reasonable Grounds or Basis for the Allegations Overview and Clarification of Scope of Review 158 As previously noted, the Board alleges that, in each case: (a) at no time did Mr Barker have any reasonable grounds for the allegations; and (b) Mr Barker ought to have known that there was no proper basis for the allegations.120 159 For the following reasons, we are satisfied that both of the allegations are made out. 160 However, before we turn to the material considered in this regard, we wish to say something about two related submissions of the Board. 161 The first is the Board's submission that we should make a finding that Mr Barker 'was unwilling to genuinely consider any explanation or evidence inconsistent with his allegations'.121 162 At the hearing, we queried whether such an allegation formed part of those Grounds alleged against Mr Barker by the Board. In response, Mr Pack pointed to paragraph 29 of the Board's Statement of Facts and Contentions. 163 That paragraph alleges both that Mr Barker ought to have known that he had no reasonable grounds or basis for his allegations against Ms L and, also, that he 'was unwilling to genuinely consider any explanation or evidence inconsistent with his allegations'. 120 Board's Statement of Facts and Contentions, paras 13, 29, 31, 32, 38 - 40. 121 Board's Outline, paras 21 - 24. -- 38 of 63 -- [2026] WASAT 74 Page 39 164 Nonetheless, the terms of Ground One do not extend so far. Rather, as noted, the terms of that Ground, and indeed Grounds Two and Three as well, allege only that Mr Barker lacked reasonable grounds for his allegations and that he 'ought to have known ' that was so. 165 Given that, and Mr Barker's failure to attend the hearing, we will not address what, in effect, amounts to an additional allegation against Mr Barker. 166 The second submission is that the obligation not to make allegations of serious impropriety without reasonable grounds required Mr Barker to consider, before making the allegations, whether there may be other explanations for the conduct of which they are critical.122 167 The requirement to consider might reasonably be said to form a necessary element of the obligation not to make baseless allegations of serious impropriety. However, in our view any such requirement should be seen only as a means to an end. That is, a requirement to consider arises only because there must be a proper basis for an allegation of serious impropriety. There is no standalone obligation to consider. 168 In what follows, we have undertaken the task that Mr Barker should have, but appears not to have, taken - to consider whether there were reasonable grounds for the allegations which he made. 169 We have done so by asking whether there were other, reasonable, explanations for the conduct of which Mr Barker is critical that do not involve serious wrongdoing. 170 That is because we agree with the Board that if there are other, reasonable, explanations for the conduct about which Mr Barker has made allegations of serious wrongdoing that do not involve serious wrongdoing, then he should not have alleged serious wrongdoing. 171 That is, if there is a reasonable alternative explanation for the conduct that does not involve serious impropriety, then there can be no 'reasonable grounds' supporting an allegation of serious impropriety.123 122 Board's Outline, para 41 relying on Kaji Australia Pty Ltd v Glover (No 5) [66]. 123 Kaji Australia Pty Ltd v Glover (No 5) [66] (Davies J). -- 39 of 63 -- [2026] WASAT 74 Page 40 The Material Considered 172 It is fair to describe the materials filed by Mr Barker in this proceeding as voluminous. He is responsible for the filing of the vast majority of the 121 documents that were filed in this matter prior to the hearing, including 22 that he describes as 'Bundles' of documents. Several of those extend to more than a hundred pages in length. 173 On 29 July 2025, President Glancy made orders prohibiting Mr Barker from filing any further documents without the Tribunal's leave. Since then, Mr Barker has filed more than 70 documents with the Tribunal. The majority of these were filed by Mr Barker without the Tribunal's leave, and accordingly, we have not had regard to those documents. 174 Indeed, we have had regard only to some very limited amount of the material filed by Mr Barker. We have adopted that position due to Mr Barker's failure to participate in the hearing or, more particularly, his failure to give evidence under oath and adopt as evidence those written documents (or parts thereof) which go to relevant matters of fact. 175 To have had regard to such documents, in such circumstances, would have denied the Board of its right to procedural fairness.124 As was said in Khosa, the obligation to provide procedural fairness is owed to all parties in the proceedings.125 It would not be fair for us to refer to, and rely upon, material which Mr Barker appears to rely upon but about which the Board was denied, by Mr Barker's failure to attend the hearing, an opportunity to cross-examine him and, thereby, test the veracity of that material.126 176 Nonetheless, despite his failure to appear, we have had regard to two categories of documents produced or filed by Mr Barker. 177 The first consists of those documents which contain Mr Barker's allegations and which form the basis for the Board's allegations of professional misconduct, such as the First Barker Affidavit. We have had regard to any explanations or justifications for his allegations against Ms L contained in that document and those others which contain allegations upon which the Board relies. We have done so 124 State Administrative Tribunal Act 2004 (WA), s 32(1). 125 Legal Services and Complaints Committee and Khosa [2023] WASAT 90; (2023) 112 SR (WA) 328 (Khosa), [112]. 126 See, for example, Khosa, [114] - [115]. -- 40 of 63 -- [2026] WASAT 74 Page 41 because it would be unfair to Mr Barker to have regard to such documents for one purpose, which is contrary to his interests, but ignore it for purposes which may be favourable to his interests. 178 The second are those formal documents which Mr Barker filed in response to the Board's Annexure A, including its Statement of Facts and Contentions. We consider it appropriate to have regard to those documents, which are somewhat analogous to a formal pleading and, in that sense, might be said to set out Mr Barker's case at its highest, albeit at a relatively high level of generality. A similar approach was taken in Khosa.127 179 There are five such documents, which the Board's Outline accurately describes128 as follows: (a) a document titled 'Response to LSCC's Annexure A' filed on 10 September 2025, which contains Mr Barker's response to Ground 1; (b) a document titled 'Ground 2' filed on 11 September 2025, which appears to contain an updated version of a previous version of Mr Barker's response to Ground 2, with the inclusion of page number references to documents (Response to Ground Two); (c) a document titled 'Ground 3' filed on 17 September 2025, which contains Mr Barker's response to Ground 3 (Response to Ground Three); (d) a document titled 'Statement of Facts and Contentions' filed on 17 September 2025, consisting of a single page response to the three Grounds (Respondent's Statement of Facts and Contentions); and (e) a document titled 'Addendum to response to Ground 2' filed on 21 September 2025, which contains further material said to be relevant to Ground 2. 180 In what follows, in relation to each Ground, we have had regard to the documents in which Mr Barker's allegations are made and, then, to Mr Barker's responsive documents. 127 Khosa, [127] - [128]. 128 Board's Outline, para 9. -- 41 of 63 -- [2026] WASAT 74 Page 42 Ground One The First Barker Affidavit 181 As noted previously, the allegations against Ms L in relation to paragraph 49 of the Ex-Wife's First Affidavit were first made in the First Barker Affidavit. 182 In our view, while there are several errors and inaccuracies in that paragraph, each of them are reasonably explicable without recourse to allegations of deliberate dishonesty. 183 In what follows, we consider each of the alleged errors in turn by starting with Mr Barker's characterisation of the error in the First Barker Affidavit. We then ask whether the subpoenaed documents themselves, which Mr Barker had reviewed prior to swearing the First Barker Affidavit, might contain another, alternative, explanation for the error. 184 The first allegation in the First Barker Affidavit is that there was 'no evidence' in the subpoenaed documents to support the statement in the chapeau to paragraph 49 of the Ex-Wife's First Affidavit that 'the medical advice was for [him] not to drive …'.129 185 In the First Barker Affidavit, Mr Barker also deposes that 'multiple' entries in the subpoenaed documents record that he advised staff that he would drive back to Karratha 'after a few days' to which, he deposes, 'there was no objection or concern expressed'.130 186 He also deposes to another document, which he does not name and which he says was not included in the subpoenaed documents. He says that he was given it upon discharge and he says that it cautioned against driving for 'at least two days after [his] procedure'.131 The document therefore appears to undermine Mr Barker's position by providing some support for the substance of what is said by his ex-wife in the chapeau to paragraph 49. 187 Of course, the focus of Mr Barker's allegation that Ms L fabricated evidence was the subpoenaed documents. Of those documents, we agree with him that there are documents that appear to acknowledge his intention to drive back to Karratha and in which no concern is raised 129 Applicant's Bundle 269, at para 14. 130 Applicant's Bundle 269, at para 14. 131 Applicant's Bundle, page 269. -- 42 of 63 -- [2026] WASAT 74 Page 43 about that proposal by medical or nursing staff.132 It should be noted that in one document no timeframe is mentioned at all and, on the other, it records he will stay in Perth 'for a couple of days' before driving back to Karratha. 188 There was, however, another document within the subpoenaed records that provides a reasonable basis for what was said by Mr Barker's ex-wife in the chapeau to paragraph 49 of her affidavit. 189 As we have noted above at paragraph [64], paragraph 105.3 of the Ex-Wife's Second Affidavit records a note made by a nurse on 7 January 2022 which records that: (a) Mr Barker had indicated his intention to drive home 'on discharge tomorrow'; (b) the surgeon was advised of that fact; and (c) the surgeon requested that 'post procedure safety concerns be reiterated to the patient bu[t] wishe[d] to proceed with the case as planned'.133 190 We agree with the Board's submission that a 'fair reading' of that note 'suggests the post procedure safety concerns relate to Mr Barker's proposal to drive from Perth to Karratha following his discharge'.134 191 That is, read reasonably, the note suggests that on 7 January 2022 Mr Barker proposed to drive home on the day of his discharge (i.e. the following day) despite advice to the contrary. The note recording the surgeon's request that the 'post procedure safety concerns be reiterated' clearly implies that they had already been communicated to Mr Barker. 192 The second 'allegation'135 made in the First Barker Affidavit concerns paragraph 49.1 of the Ex-Wife's First Affidavit. In that para, his ex-wife deposed that Mr Barker had 'driven from Karratha and slept in his car in hospital car park overnight [i.e. prior to surgery] and intends to drive home to Karratha on discharge tomorrow'. 193 As just discussed, that statement is supported by the note of 7 January 2022. In the First Barker Affidavit Mr Barker agreed that the 132 Applicant's Bundle, pages 66, 67 and 74. 133 Applicant's Bundle, page 74. 134 Board's Outline, para 66. 135 For reasons that are evident in the following discussion, Mr Barker's complaint in this regard is the inaccuracy of the hospital records, rather than Ms L's summary of them. -- 43 of 63 -- [2026] WASAT 74 Page 44 'hospital records did say this' but complains the records are inaccurate.136 194 The accuracy or otherwise of the subpoenaed hospital records is not for us to determine. The short point, however, is that by acknowledging the accuracy of the record, Mr Barker does not allege fabrication. 195 As previously noted, however, Mr Barker does say that the 'inaccurate' record was included with an intention of misleading the FCWA. Although there is no explanation given for that remarkable suggestion, it doesn't amount to an allegation of fabrication and so it doesn't appear to form part of Ground One. We will say no more about it. 196 The third allegation in the First Barker Affidavit concerns paragraph 49.2 of the Ex-Wife's First Affidavit, in which Mr Barker's ex-wife deposed that he had been discharged after surgery with 'strong pain medication including Oxycodone, Ondasetron [sic - Ondansetron]'. 197 Mr Barker described that paragraph as 'a complete fabrication of evidence by [Ms L/her firm]'.137 198 Mr Pack advised that Ondansetron is an anti-nausea medication, rather than pain medication,138 but that error does not appear to be the subject of Mr Barker's allegation. 199 Both medications, including Oxycodone, which is a strong painkiller, are recorded in a document subpoenaed from the hospital that is headed 'Adverse Drug Reaction'. It records Oxycodone, Ondansetron and Paracetamol as having been prescribed to Mr Barker from 7 January 2022, as PRN (pro re nata - as needed) medication. 200 That document does not record them as having been given to Mr Barker upon discharge.139 However, another of the subpoenaed documents, titled 'Discharge/Transfer Checklist,140 and dated 8 January 2022 (the date of Mr Barker's discharge) includes a ticked box next to the words 'Discharge medications given to patient', although it does not identify the medications that were provided. 136 Applicant's Bundle, page 269, para 15. 137 Applicant's Bundle, page 269, para 17. Also, page 270, para 17. 138 ts 57, 22 April 2026. 139 Applicant's Bundle, page 117. 140 Applicant's Bundle, page 64. -- 44 of 63 -- [2026] WASAT 74 Page 45 201 In the First Barker Affidavit, Mr Barker deposes that the subpoenaed material 'does include lists of my medication on discharge from FSH on 8 January 2022' but, he says, '[n]one' of those documents' list 'painkillers as medicines [he] was taking on discharge'.141 202 We are unable to identify any documents within the subpoenaed documents that list medications prescribed for him on discharge. We have, however, identified and proceeded on the basis of the two documents referred to above. 203 The short point is that while paragraph 49.2 does not accurately describe the relevant content of the subpoenaed documents, the documents to which we have referred allows a reasonable reader to conclude that the inaccuracy may have been the result of haste or confusion or some other unfortunate, but entirely innocent, mistake. 204 By 'innocent' we do not mean that a reasonable reader could not conclude that Ms L was entirely without fault. Such a reader may have concluded that the haste or confusion that resulted in the error may have been the result of carelessness or some other human failing by Ms L. 205 The point is not to either exonerate or condemn Ms L. Rather, the point is that there were other, reasonable, explanations open to Mr Barker after he had examined the subpoenaed documents, which fall well short of the conclusion to which he deposed in the First Barker Affidavit that paragraph 49.2 of the Ex-Wife's First Affidavit was a 'complete fabrication'. 206 The fourth allegation made by Mr Barker in the First Barker Affidavit, concerns paragraph 49.3 of the Ex-Wife's First Affidavit. That paragraph quotes a passage from a note in the Subpoenaed Documents concerning Mr Barker's treatment in August 2021, five months prior to the critical dates. 207 In the First Barker Affidavit, Mr Barker correctly identifies the note from August 2021 as the source of the erroneous quoted passage.142 208 That is, he correctly notes both that the quoted passage has its origin in a subpoenaed record from FSH and that the record concerns a previous admission. Having done so, Mr Barker alleges that its 141 Applicant's Bundle, page 270, para 19. 142 Applicant's Bundle, page 270, para 21. -- 45 of 63 -- [2026] WASAT 74 Page 46 inclusion amounts to a 'false and misleading fabrication of the FSH subpoenaed material …'143 209 Mr Barker gives no explanation or justification for that allegation in the First Barker Affidavit, but we agree with the Board's submission that there are, in fact, 'several possible explanations', including that:144 [Ms L], while inspecting the subpoenaed documents (which are not entirely in chronological order) or later when reviewing her notes of her inspection, overlooked the date of the progress note and that it related to an earlier procedure. 210 That was the explanation given to the Board by Ms L, which was then passed on to Mr Barker in the Board's letter of 10 January 2025.145 It is also consistent with that contained in paragraph 105.4 of the Ex- Wife's Second Affidavit. As we have previously noted, that paragraph notes that the subpoenaed documents were not entirely in chronological order, although it does not go further and state that it was confusion as to chronology caused the error. 211 The subpoenaed documents contained in the Bundle provided to us by the Board are organised by reference to the department within the hospital that produced the records - Anaesthetics/Cardiology etc. The majority of the documents fall under the heading 'Patient Admissions', which include Mr Barker's admission in January 2022 followed by that of August 2021. We have proceeded on the basis that they appear in the order to which they were given to the Board and its submission quoted at paragraph [209] above, supports that view. 212 If so, it seems reasonable to suggest that the subpoenaed documents were also provided to Mr Barker with the same jumbled chronology. On that basis, the subpoenaed documents themselves might be said to provide a reasonable alternative explanation for the erroneous inclusion of the quote from the August 2021 note. That is, it was reasonable to conclude that the jumbled chronology of the subpoenaed documents may have resulted in innocent (although not necessarily blameless) human error as the cause of the inclusion of the quotation from the August 2021 note in paragraph 49.3 of the Ex- Wife's First Affidavit. 143 Applicant's Bundle, page 270, para 23. 144 Board's Outline, para 77. 145 Applicant's Bundle, page 438, para 15. -- 46 of 63 -- [2026] WASAT 74 Page 47 The Wife's Explanation and Ms L's Explanation Provide a Reasonable Explanation for the Errors 213 As we have noted above, Ms L provided an explanation for the error in paragraph 49.3 to the Board as part of its enquiry into Mr Barker's complaint against her. 214 The Board's letter, advising Mr Barker that it had dismissed his complaint, was dated 10 January 2025. That letter states that the Board had concluded that there was a 'proper basis' for the statements in paragraphs 49.1 and 49.2 of the Ex-Wife's First Affidavit. 215 It also stated that the Board was satisfied that there was 'no evidence' that the error in paragraph 49.3 was deliberate. As to this latter finding, the Board's letter refers to both the Ex-Wife's Second Affidavit and to Ms L's statement saying that Ms L had: informed the Board that this error [i.e. the error in para 49.3] was inadvertent, in that she did not notice the discrepancy between the dates when inspecting the Subpoenaed Documents. She further stated that the court orders did not permit her to take copies of the Subpoenaed Documents so she was relying solely on her handwritten notes when reporting back to her client. 216 Mr Barker did not have either the Ex-Wife's Second Affidavit or the Board's letter (and, therefore, Ms L's explanation) when he first made the allegations against Ms L in the First Barker Affidavit. However, as we have shown in our consideration of the allegations themselves, Mr Barker continued to repeat those allegations on numerous occasions after he was provided with those documents. 217 In our view, he should not have done so because these explanations by his ex-wife and Ms L, and the Board's own findings, amount to a reasonable alternative explanation for the error in paragraph 49.3 of the Ex-Wife's First Affidavit. Subsequent Material 218 We have previously identified each of the numerous documents on which the Board relies and in which Mr Barker alleges that Ms L fabricated evidence. 219 Other than the First Barker Affidavit, which we have addressed above, none of those numerous documents includes any attempt by Mr Barker to justify or explain the allegations. -- 47 of 63 -- [2026] WASAT 74 Page 48 220 To the extent that they include anything in them beyond simply repeating the allegation, Mr Barker goes no further than to assert, in effect, that the supporting evidence is available (although he does not identify or describe it) and the conclusion of fabrication will be apparent to anyone upon review,146 or that the truth of the allegation is self-evident and/ or that he has previously 'proven' the allegations.147 Mr Barker's Responsive Material 221 We have previously (at paragraph [179]) identified the responsive documents that Mr Barker filed with the Tribunal in response to the Board's Grounds and Statement of Facts and Contentions, contained in the Board's Annexure A. 222 The two documents which address Ground One are the first (Response to LSCC's Annexure A) and fourth (Respondent's Statement of Facts and Contentions) filed. 223 The Respondent's Statement of Facts and Contentions may be disposed of quickly. 224 It purports to address all three of the Board's Grounds. In relation to Ground One, Mr Barker admits to 'stating that [Ms L] fabricated subpoenaed evidence on multiple occasions and multiple times to the FCWA, the SAT and to the LSCC', then says that he is 'not going to waste any more time responding to each allegation' and says that he considers 'the LSCC's failure to investigate as a further perversion of the course of justice'.148 225 Accordingly, we are satisfied that it contains no attempt to explain or justify the basis on which the allegations against Ms L were made. 226 The Response to LSCC's Annexure A addresses only Ground One. In its 15 pages, it covers more ground than the allegations the subject of Ground One, but we will limit ourselves to the relevant issue. 227 Much of the document proceeds on the basis that the allegations are, self-evidently, factually correct. So, for example, under the heading Unfairness or Criminality by the LSCC?, Mr Barker states:149 146 See, for example, Applicant's Bundle, pages 258, 372, 391, 461. 147 See, for example, Applicant's Bundle, pages 383, 384, 449, 500. 148 Respondent's Statement of Facts and Contentions filed 17 September 2025. 149 Response to LSCC's Annexure 'A', filed 10 September 2025, page 3 (pages un-numbered). -- 48 of 63 -- [2026] WASAT 74 Page 49 As I stated to Her Honour President Glancy (Her Honour) and the LSCC in VR20/2023 matter, [Ms L and her firm] fabricated FCWA evidence to [his ex-wife] and the Court in [the Ex-Wife's First Affidavit] and has spent the last four years: - Denying her actions; - Demonising me to draw any attention away from the fabrication of evidence; and - Generally, in an aggravated way, has tried to hide or divert the Court away from her fabrication of subpoenaed FCWA evidence. 228 Later, under the heading Does the LSCC have the Power to Investigate Criminal Offences?, Mr Barker states:150 It is not in doubt, as discussed in my VR20/2023 matter and discussed below, that [Ms L/her firm] fabricated subpoenaed FCWA evidence. … 229 Under the heading The Subject of Ground 1,151 Mr Barker refers to, and relies upon, the First Barker Affidavit as well as an affidavit prepared for VR 20/2023, but also filed in these proceedings on 5 June 2025, headed 'Affidavit of Michael Henry Barker [Ms L's] Fabrication of Evidence' (Second Barker Affidavit). 230 On pages 7 - 8 of the Second Barker Affidavit, Mr Barker addresses paragraph 49 of the Ex-Wife's First Affidavit. To the extent that he purports to explain why parts of paragraph 49 amount to a fabrication of evidence it goes no further than to seek to demonstrate the errors and inaccuracies within that paragraph. That is, at no time does he seek to demonstrate that he had reasonable grounds to allege fabrication. 231 So, for example, at paragraph 39 of the Second Barker Affidavit, Mr Barker seeks to demonstrate that paragraph 49.2 of the Ex-Wife's First Affidavit (concerning painkiller medication) 'is fabricated evidence' by stating that the surgery was 'virtually pain free afterwards'. He also claims that the subpoenaed material says that he was not on pain medication on discharge.152 232 That is, he merely points to material which, he says, demonstrates that paragraph 49.2 was incorrect; he does not seek to demonstrate a basis for his allegation of deliberate fabrication or demonstrate that 150 Response to LSCC's Annexure 'A', filed 10 September 2025, page 5 (pages un-numbered). 151 Response to LSCC's Annexure 'A', filed 10 September 2025, page 7 (pages un-numbered). 152 Affidavit of Michael Henry Barker Ms [L's] Fabrication of Evidence, filed 5 June 2025, page 7, para 39. -- 49 of 63 -- [2026] WASAT 74 Page 50 there is no reasonable basis to conclude that any errors were, for example, carelessly made. 233 He takes a similar approach in relation to the error in paragraph 49.3, relying on the document he was provided with at discharge from hospital (that was not part of the subpoenaed documents) to show error, but he does not attempt to explain why he says the error was the result of dishonesty.153 234 It is unnecessary to say any more about Mr Barker's Response to the LSCC's Annexure A, save to note that, in two instances, Mr Barker appears to acknowledge that alternative explanations for errors in paragraph 49 of the Ex-Wife's First Affidavit have been put forward by others. However, at no time does he engage with those alternatives. Rather, he dismisses the suggestion out of hand. 235 The first apparent acknowledgement follows references to those of the subpoenaed documents from which quotes were taken in paragraph 49 of the Ex-Wife's First Affidavit. He then says:154 These quotes from my FSH medical file are spread over approximately 70 pages from a complex 149 page FSH medical file. These references from my FSH medical file were not 'accidently' falsified by [Ms L/ her firm] from my FCWA-subpoenaed FSH medical file. 236 The second apparent acknowledgement is in almost identical terms and occurs in a similar context, albeit dealing with slightly different subject matter. The only difference in wording is that the word 'accidentally' is replaced with the words 'by chance'.155 237 By these statements it appears that Mr Barker is aware of an alternative view of the cause of the errors in paragraph 49 of the Ex- Wife's First Affidavit. However, he does not engage in any meaningful way with the alternative explanation; rather he dismisses it outright and insists that his position is correct. 153 Affidavit of Michael Henry Barker Ms [L's] Fabrication of Evidence, filed 5 June 2025, page 7, paras 40 - 42. 154 Response to LSCC's Annexure 'A', filed 10 September 2025, page 9 (pages un-numbered). Underlining in original. 155 Response to LSCC's Annexure 'A', filed 10 September 2025, page 10 (pages un-numbered). -- 50 of 63 -- [2026] WASAT 74 Page 51 Ground Two The Letters to the FCWA 238 There is nothing in either of the two letters sent by Mr Barker to the FCWA (dated 10 December 2024 and 20 January 2025 respectively) that seeks to explain or justify - to identify reasonable grounds for - Mr Barker's allegations against the FCWA regarding his allegations against Ms L. 239 Rather, as we have noted above: (a) in the earlier letter156 Mr Barker: (1) notes the FCWA's previous refusal to accept for filing documents in which he makes allegations against Ms L; (2) foreshadows a future application; and (3) asserts that a refusal by the FCWA to accept for filing that future application will amount to a 'perversion of the course of justice'; and (b) in the later letter157 Mr Barker simply labels the FCWA's previous refusal to accept for filing documents containing his allegations against Ms L as a perversion of the course of justice. Mr Barker's Responsive Material 240 As noted above, two of Mr Barker's responsive documents are, on their face, concerned with Ground Two - Response to Ground 2 and the Addendum to Response to Ground 2. 241 There is nothing in either of those two documents that addresses the substance of Ground Two. Rather, much of the first, and all of the second, is concerned with allegations regarding the conduct of an independent children's lawyer. 242 The fourth page of Response to Ground 2 repeats the allegation that Ms L fabricated evidence, but it does not address the FCWA's refusal to allow Mr Barker to file documents, let alone explain why doing so amounts to a perversion of the course of justice. 243 In that regard, it might be said that in that document Mr Barker simply proceeds on the basis that his allegations against Ms L are self- evidently true, such that the FCWA's refusal to allow Mr Barker to file 156 Applicant's Bundle pages 422 - 424. 157 Applicant's Bundle pages 483. -- 51 of 63 -- [2026] WASAT 74 Page 52 documents containing those allegations amounts to a deliberate 'shutting of the Court's ears'. Ground Three Mr Barker's Communications to the Board and FCWA 244 There is nothing in any of: (a) the emails dated 10, 11, 12, 16 and 20 January 2025; or (b) the letters dated 17 February and 21 March 2025 sent by Mr Barker to the Board or the FCWA; or (c) his statements made in the hearings in the FCWA on 22 January 2025 or this Tribunal in VR 20 of 2023 on 25 March 2025, that seek to explain or justify - that seek to demonstrate that there were reasonable grounds for - Mr Barker's allegations against the Board the subject of Ground Three. 245 Rather, in those documents, he simply asserts that the Board, the Committee and/or its officers, have (for example), perverted the course of justice. 246 To the extent that anything further is said, it is to the effect that, or it implies that, the allegations against Ms L are so self-evidently correct that the Board's dismissal of his complaint against her must amount to a perversion of the course of justice, corruption, criminal acts, or some combination of the three. 247 So, for example: (a) in his email sent 4.28 pm on 11 January 2025, Mr Barker stated that:158 [Ms L's] fabrication of evidence, and all the charges that stem from that are way beyond a reasonable doubt. So are your actions. (b) in his email of 12 January 2025, he said: … Eg, I called [Ms L] dodgy and loose [sic - lose?] my legal practice, and [Ms L] actually commits a criminal offence, and you guys blame the victim. (c) in his letter to the FCWA dated 17 February 2025, he wrote: I do not know what the link is between [Ms L] and the LSCC but since 8 September 2022, when I was served the section 83 158 Applicant's Bundle, page 449. -- 52 of 63 -- [2026] WASAT 74 Page 53 notice, I have always known that the LSCC's Notices were corrupted, incompetent and unprofessional documents, and that the removal of my LPC and the destruction of [his firm] were criminal acts. (d) in his letter of 21 March 2025, he says: I allege that the LSCC is insisting that [Ms L] did not fabricate subpoenaed FCWA evidence … because the LSCC is trying to protect its officer's conduct being scrutinised, most notably Mr Colella. 248 Another of the allegations made by Mr Barker against the Board the subject of Ground Two is that it 'fabricated' evidence concerning what Mr Barker said in a hearing in the FCWA on 8 April 2021. 249 By the second of the two letters lodged for filing with the FCWA on 17 February 2025, Mr Barker claims that paragraph 12 of a Notice issued by the Committee and paragraph 33 of the Committee's Annexure A in VR 20 of 2023 are 'two different fabrications of the same FCWA transcript'.159 We have included in full the relevant portion of that letter above, at paragraph [145]. 250 Mr Barker does not identify the substance of the two alleged 'fabrications' and it may not be terribly helpful to try to identify them ourselves. Nonetheless, we have had regard to the transcript of the FCWA hearing of 8 April 2021.160 251 In it, Mr Barker asks for an 'urgent partial settlement' and a 'partial urgent settlement' whereas: (a) in his letter of 17 February 2025, Mr Barker records paragraph 12 of the Committee's Notice as alleging that he sought an 'urgent final settlement'; and (b) in Mr Barker's transcription of paragraph 33 of the Committee's Annexure A he records the allegation that he had filed an application seeking an 'urgent final settlement'. 252 Assuming it is that difference that is the source of Mr Barker's allegation, we have been unable to identify its source but either way, its significance is not apparent. In any event, Mr Barker does not provide any basis for the allegation of fabrication, he simply proceeds on the 159 Applicant's Bundle, page 540. 160 Applicant's Bundle, pages 1 - 24. -- 53 of 63 -- [2026] WASAT 74 Page 54 basis that that error (if, indeed, that is what it is) must be the result of deliberate wrongdoing. Mr Barker's Responsive Material 253 Mr Barker's responsive material to Ground Three is very brief. There are two documents. The first is a single document of about 1¼ pages in length which deals solely with Ground Three.161 The second is the Respondent's Statement of Facts and Contentions, which is only just longer than ½ a page in length. 254 In the latter, Mr Barker admits to making the allegations and simply says that his 'response to each of the statement of facts and contentions of Ground 3 are answered by [his] response to Ground 3 previously filed.' That appears to be a reference to the document titled 'Response to Ground Three', which he filed on 17 September 2025, to which we now turn. 255 Nowhere within that document does Mr Barker seek to explain or justify - to demonstrate reasonable grounds - the allegations made by him against the Board. 256 Rather, Mr Barker commences by asserting that the Board's allegation of Ground Three 'pretty much proves' the allegations the subject of that Ground. 257 He then asks a series of rhetorical questions, which assume the correctness of his allegations against Ms L. So, for example: Why would a competent, professional lawyer's governing body: - Ignore the fabrication of evidence of one lawyer while removing the legal practicing certificate of the whistleblower and destroying his legal practice … - … - File an [sic] SAT application in which it apparently boasts about lacking independence, and [sic - is?] incompetent, corrupt, unprofessional and unethical? Why would a competent, professional lawyer's governing body: - Ignore the perversion of the course of justice of one lawyer by failing to investigate the allegations … 161 Submissions Response to Ground 3, filed 17 September 2025. -- 54 of 63 -- [2026] WASAT 74 Page 55 258 There is one aspect of the above which we consider deserves further comment, which is Mr Barker's allegation that the Committee failed to investigate his allegations against Ms L. That allegation is, quite obviously, wrong. 259 We have already described the Board's letter to Mr Barker of 10 January 2025, which explained why it disagreed with his allegations against Ms L and why it had closed its investigation.162 260 In doing so, the Board makes clear that it has investigated Mr Barker's complaint against Ms L. Amongst other things, it states that the Board 'obtained and reviewed copies of the Subpoenaed Documents' and provides an analysis thereof. That analysis included the Board's conclusion that there was a proper basis for some of the sub-paras to paragraph 49 of the Ex-Wife's First Affidavit and its explanation for reaching that conclusion.163 261 It is, of course, a matter for Mr Barker as to whether or not he agrees with the Board's determination of his complaint, but his allegation that the Board failed to investigate his complaint lacks any support and fails to engage with the Board's letter which provides evidence to the contrary. Conclusions as to Whether Mr Barker Had Reasonable Grounds and Whether He Ought to have Known 262 As noted above, in relation to each Ground, the Board alleges both that Mr Barker did not have any reasonable grounds for the allegations and that he ought to have known that there was no proper basis for them. 263 The first of those allegations asks us to form our own view as to whether there were 'reasonable grounds' for Mr Barker's allegations. The second asks us to determine whether a reasonable person in Mr Barker's position should have ('ought to have') known that there was no proper basis for them. 264 As to Ground One, we are satisfied that the subpoenaed documents alone allow for a reasonable explanation to be reached as to the basis for the errors in paragraph 49 of the Ex-Wife's First Affidavit. 162 Applicant's Bundle, page 436. 163 Applicant's Bundle, page 437. -- 55 of 63 -- [2026] WASAT 74 Page 56 265 We have reached that conclusion on two bases. First, because there is nothing in the material produced by Mr Barker that seeks to justify the allegations, beyond statements which identify certain errors. 266 However, the mere existence of error does not, of itself, demonstrate that the error was deliberate. 267 Indeed, and this is our second reason, having reviewed the subpoenaed documents ourselves, we are satisfied that they contain reasonable explanations for the errors that fall well short of serious impropriety by Ms L. 268 To be clear, we have reached that conclusion on the basis of the subpoenaed documents alone such that the explanation in the Ex-Wife's Second Affidavit and that in the Board's letter to Mr Barker of 10 January 2025 merely reinforced those explanations and expressly brought them to Mr Barker's attention, albeit some considerable time after he just made the allegations about Ms L. 269 Accordingly, we are satisfied that there were no reasonable grounds for the allegations that Ms L fabricated evidence and those allegations therefore should not have been made. 270 The fact that there were reasonable, alternative, explanations for the errors that did not involve serious impropriety meant that Mr Barker was required, by his ethical obligations previously described, to refrain from alleging such impropriety. 271 In that way, we are also satisfied that Mr Barker ought to have known that there was no proper basis for his allegations. 272 That is, a reasonable person in Mr Barker's position would have been aware of both the reasonable, alternative, explanations and the ethical obligations. 273 We are satisfied that a reasonable person in Mr Barker's position - that is, an experienced (albeit former) legal practitioner - would have reviewed the subpoenaed documents and realised the likely source of the errors. 274 Indeed, as we have noted several times, Mr Barker did just that in relation to the error in paragraph 49.3, identifying the source of the error as the note from August 2021. -- 56 of 63 -- [2026] WASAT 74 Page 57 275 Having done so, he ought to have realised that there was a reasonable explanation for the error. However, he either failed to recognise the possibility or, alternatively, did so and dismissed it. 276 As to Ground Two, the ethical obligation not to make allegations of serious impropriety without a proper basis provides, in our view, an objectively reasonable explanation for the FCWA's refusal to allow Mr Barker to file various documents containing his allegations against Ms L. 277 That is, the FCWA's refusal to accept those documents for filing appears to amount to that Court's protection of its own processes from abuse, by preventing the filing of documents that include baseless allegations of serious impropriety.164 278 That is not to say that we have proceeded on the basis that the Court has undertaken its own investigations as to whether there was a reasonable basis for the allegations. Rather, we infer that the Court has refused to accept the documents for filing because there is nothing in them which provides a basis for the allegations contained therein. 279 In any event, as the Board notes,165 the proper course that should have been taken by Mr Barker upon the refusal by the Court's registry to accept a document for filing was to seek review of that decision.166 280 In short, we are satisfied that there is, objectively, a reasonable explanation for the FCWA's refusal to allow Mr Barker to file documents containing the allegations against Ms L. 281 In those circumstances, as in Ground One, we are therefore satisfied that Mr Barker had no reasonable grounds to make the allegations the subject of this Ground; the existence of a reasonable alternative explanation that did not involve serious impropriety means that there is no reasonable basis to allege such impropriety. 282 We are also satisfied that Mr Barker ought to have known that there was no proper basis for his allegations. 283 Mr Barker's letters of 10 December 2024 and 20 January 2025 acknowledge his own understanding of the rejection of his documents 164 Family Court Rules 2021 (WA), r 490(1). 165 Board's Outline, para 91. 166 Family Court Rules 2021 (WA), r 490(3). -- 57 of 63 -- [2026] WASAT 74 Page 58 for filing - they speak of documents being rejected that 'criticise the ethics of [Ms L] that shows that she has acted in a criminal way'.167 284 A reasonable person in Mr Barker's position (i.e. a former practising solicitor) would know of the obligation to refrain from making such allegations without a proper basis. They would also know of the Court's rules which reflect and enforce that obligation. 285 Finally, as to Ground Three, the Board's own letter of 10 January 2025 provides an objectively reasonable basis for its decision to dismiss his complaint against Ms L. Specifically, it sets out the basis on which the Board accepted that there were reasonable explanations for the errors made by Ms L that fell well short of serious impropriety. 286 Further, a reasonable person in Mr Barker's position would have accepted the Board's letter as a reasonable explanation, even if they disagreed with it. Accordingly, we are satisfied that Mr Barker ought to have known that there was no proper basis for his allegations of serious impropriety against the Board. There is no Need for any Inference to be Drawn 287 Given the above, it should be apparent that it is unnecessary for us to accede to the Board's invitation to have regard to Mr Barker's failure to participate in the hearing and give evidence as a basis upon which we might draw inferences in support of the conclusions that it proposes.168 288 As we have already noted, Mr Barker's failure to participate had the result that we have had regard to only a small number of the documents filed by him. 289 His failure to attend the hearing, and his consequential failure to challenge any of the evidence, or to provide any explanation, means that we can safely rely upon the evidence tendered by the Board.169 290 On the basis of that material, and for the reasons already stated, we are satisfied that the Board has made out its case. 167 Bundle, page 422. 168 Board's Outline, paras 30 and 32. 169 Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73, [25]; Victorian Legal Services Board v Mericka [2024] VSC 1, [6] (Mericka). -- 58 of 63 -- [2026] WASAT 74 Page 59 The Conduct was Such as to Justify a Finding that Mr Barker is not a Fit and Proper Person to Engage in Legal Practice 291 The Board alleges that, in the case of each of Grounds One and Two, Mr Barker's conduct was: (i) likely, to a material degree, to bring the profession into disrepute; (ii) likely, to a material degree, to be prejudicial to, or diminish public confidence in, the administration of justice; and/or (iii) such as to justify a finding that Mr Barker is not a fit and proper person to engage in legal practice. 292 In Ground Three, the allegation as to public confidence in the administration of justice is omitted. 293 The first two allegations appear to be commonly considered together. Indeed, Conduct Rules 5.1.2 addresses them in a single rule, although they are joined by the disjunctive 'or'. 294 That is, presumably, because conduct which brings the profession into disrepute will likely also diminish public confidence in the administration of justice. That is because of the central role played by the legal profession in the administration of justice.170 295 In what follows, we refer to three cases in which lawyers have made baseless allegations of serious misconduct against the Courts and bodies such as the Board. In each case, the court or tribunal has found that the conduct was such as to bring the profession into disrepute and to be prejudicial to, or diminish public confidence in, the administration of justice. 296 In Mericka,171 the Victorian Supreme Court was concerned with an application to remove the practitioner's name from the roll. 297 Mr Mericka had repeatedly made allegations about judges of the Supreme Court 'and various individuals performing statutory roles', including the Victorian Legal Services Commissioner, the Victorian Legal Services Board and several of its staff. The allegations were to the effect that those individuals were corrupt, had covered up corruption or had engaged in criminal conduct or in other improper 170 See the passage of Spigelman CJ from Cummins, quoted at para [48] above. 171 Victorian Legal Services Board v Mericka [2024] VSC 1 (Mericka). -- 59 of 63 -- [2026] WASAT 74 Page 60 conduct. There was no foundation for the making of any of those allegations.172 298 Mr Mericka made those allegations by various means, including the writing of letters and the making of online publications. 299 Harris J held that it was 'hard to imagine a clearer case of conduct intended to diminish public confidence in the administration of justice'.173 300 Having then said that it was to be hoped that readers 'would understand that there was nothing of substance' to the allegations, he went on to find that:174 More clearly, however, the publications making scandalous allegations, in disgraceful terms about members of the judiciary as well as about statutory officeholders and other entities with important regulatory roles within the justice system, when made by a lawyer who prominently identifies himself as holding that position, do tend to diminish public confidence in the legal profession, and bring it into disrepute. 301 Although Mericka concerned the broadscale publication of baseless allegations of serious misconduct, other cases have been concerned with conduct involving the making of baseless allegations of serious misconduct intended for a much smaller audience. 302 We have already referred to Griffin, which concerned a letter written by a solicitor-advocate to a Federal Court judge who had previously heard a case in which Mr Griffin appeared. The judge had dismissed an application to extend time brought by Mr Griffin's client. Mr Griffin's letter made numerous allegations against the judge, including that he had not written the reasons for dismissal himself and that he acted otherwise than in good faith. 303 The Council of the Law Society's case against Mr Griffin was that the letter was grossly discourteous. The matter came before the Court on appeal from a decision which upheld the complaint. The Court dismissed the appeal and, in doing so, made clear that other grounds of complaint were available. In addressing Mr Griffin's ground of appeal 172 Mericka, [16]. 173 Mericka, [78]. 174 Mericka, [80]. -- 60 of 63 -- [2026] WASAT 74 Page 61 that his letter was incapable of constituting professional misconduct, the Court held:175 The concept of "professional misconduct" as applied to solicitors must also be informed by the Solicitors Rules in force at any given time. As has been seen, the "fundamental ethical duties" of solicitors laid down in the 2013 Rules include a requirement that solicitors be "courteous in all dealings in the course of legal practice". In addition, a solicitor is not to engage in conduct which is likely in a material degree to diminish the public confidence in the administration of justice or bring the profession into disrepute, even if the solicitor has not acted dishonestly or in a manner that necessarily infringes "precepts of fair dealing". These rules indicate that a private communication between a solicitor-advocate and a Judge who has heard a case in which the solicitor has appeared may constitute professional misconduct. This may be the case, for example, if the solicitor makes unsubstantiated allegations of bad faith and dishonesty against a presiding Judge arising out of proceedings in which the solicitor has been involved. 304 We have found that Mr Barker made allegations of the most serious kind against a fellow legal practitioner, a court and the Board, the legal profession's regulator. 305 Those allegations were to the effect that Ms L had fabricated evidence and that the FCWA and the Board were, at best, blind to that misconduct and, at worst, complicit in it. 306 It is unclear to us whether he has made those allegations because he genuinely believes them to be true or in order to achieve other objectives, whether associated with the FCWA litigation against his ex-wife, for example, or otherwise, but either way, and for the reasons we have already indicated, there was no reasonable basis for the allegations. 307 Further, in the case of the FCWA, there was an alternative, and orthodox, means by which to pursue his concerns (i.e. by way of review of the decision), rather than to make the allegations. 308 In each case, the subject matter of Mr Barker's allegations goes to the heart of the integrity of the profession and the administration of justice - allegations that a lawyer had fabricated evidence and that the FCWA and the Board had either refused to act or were complicit in the illegality. 175 Griffin, [105] per Sackville AJA, with whom Ward and Gleeson JJA agreed. Internal citations omitted. -- 61 of 63 -- [2026] WASAT 74 Page 62 309 We agree with the Board's submission that such unfounded allegations are likely to bring the profession into disrepute and diminish confidence in the administration of justice in two ways. First, they reflect poorly on Mr Barker who, while not a certificated practitioner is a lawyer nonetheless. Secondly, they do so by 'risking damage to the repute of the targets of the allegations, who are … members of the profession or involved in its administration'.176 310 Those reasons are also, in our view, a proper basis to find that Mr Barker's conduct is such as to justify a finding that he is not a fit and proper person to engage in legal practice. 311 That is because, for the preceding reasons, his allegations have actively undermined the integrity of the legal profession, the Courts and the legal system. 312 Such a conclusion is consistent with the decisions in Mericka and Legal Practitioner LP 202012.177 313 Also relevant is the decision of Jensen, in which the practitioner wrote to an investigator of Queensland's Legal Services Commissioner who was investigating a complaint against him stemming from a letter threatening proceedings against another practitioner.178 He claimed that the investigator 'seemed to be trying to pressure' him into not suing the other practitioner.179 The Court held that there was no basis for the allegation and that:180 For a solicitor to make such a statement attributing an improper motive to an investigator whose behaviour had been professional and objective is to my mind professional misconduct. It demonstrates that he was not a fit and proper person to practice law. 314 We are satisfied that the same may be said of many of Mr Barker's allegations against the Board and its officers and similar may be said of his allegations against the FCWA. 315 For these reasons, therefore, we find the relevant allegations made out against Mr Barker in relation to each Ground and find that the conduct in relation to each Ground constitutes professional misconduct. 176 Board's Outline, para 46. 177 See, for example, Mericka, [81] & [82]; Legal Practitioner LP 202012, [269]. 178 Jensen v Legal Services Commissioner [2017] QCA 189. 179 Jensen, [151]. 180 Jensen, [151]. -- 62 of 63 -- [2026] WASAT 74 Page 63 Orders 316 We find that Mr Barker is guilty of three counts of professional misconduct. 317 The matter should be listed for directions for the programming of a hearing as to penalty and costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DM Associate 26 JUNE 2026 -- 63 of 63 --